Rule2024-06625
Train Crew Size Safety Requirements
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 9, 2024
Effective
June 10, 2024
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
FRA is establishing minimum safety requirements for the size of train crews depending on the type of operation. This final rule requires railroad operations to have a minimum of two crewmembers except for certain identified one-person train crew operations that do not pose significant safety risks to railroad employees, the public, or the environment. This final rule includes requirements for railroads seeking to continue certain existing one-person train crew operations and a special approval process for railroads seeking to initiate certain new one-person train crew operations. This final rule also requires each railroad receiving special approval for a one-person train crew operation to submit to FRA an annual report summarizing the safety of the operation.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 25052-25115]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06625]
[[Page 25051]]
Vol. 89
Tuesday,
No. 69
April 9, 2024
Part IV
Department of Transportation
-----------------------------------------------------------------------
Federal Railroad Administration
-----------------------------------------------------------------------
49 CFR Part 218
Train Crew Size Safety Requirements; Final Rule
Federal Register / Vol. 89 , No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 25052]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 218
[Docket No. FRA-2021-0032, Notice No. 5]
RIN 2130-AC88
Train Crew Size Safety Requirements
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is establishing minimum safety requirements for the size
of train crews depending on the type of operation. This final rule
requires railroad operations to have a minimum of two crewmembers
except for certain identified one-person train crew operations that do
not pose significant safety risks to railroad employees, the public, or
the environment. This final rule includes requirements for railroads
seeking to continue certain existing one-person train crew operations
and a special approval process for railroads seeking to initiate
certain new one-person train crew operations. This final rule also
requires each railroad receiving special approval for a one-person
train crew operation to submit to FRA an annual report summarizing the
safety of the operation.
DATES: This regulation is effective June 10, 2024.
ADDRESSES: For access to the docket to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> at any time.
FOR FURTHER INFORMATION CONTACT: Christian Holt, Staff Director,
Operating Practices Division, Office of Railroad Safety, Federal
Railroad Administration, at telephone (202) 366-0978 or by email at
<a href="/cdn-cgi/l/email-protection#3a79524853494e535b54147255564e7a5e554e145d554c"><span class="__cf_email__" data-cfemail="3e7d564c574d4a575f50107651524a7e5a514a10595148">[email protected]</span></a>; or Alan Nagler, Senior Attorney, U.S.
Department of Transportation, Federal Railroad Administration, at
telephone (202) 493-6038 or by email at <a href="/cdn-cgi/l/email-protection#23424f424d0d4d42444f465163474c570d444c55"><span class="__cf_email__" data-cfemail="543538353a7a3a353338312614303b207a333b22">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
AAR--Association of American Railroads
ACI--American Consumer Institute
AII--Alliance for Innovation and Infrastructure
APTA--American Public Transportation Association
ASLRRA--American Short Line and Regional Railroad Association
ATDA--American Train Dispatchers Association
BLET--Brotherhood of Locomotive Engineers and Trainmen
BMWED--Brotherhood of Maintenance of Way Employes Division
BNSF--BNSF Railway Company
CARS-TC--Citizens Acting for Rail Safety--Twin Cities
CFZ--Critical focus zones
CLF--California Labor Federation
CN--Canadian National Railway Company
Conrail--Consolidated Rail Corporation
CPUC--California Public Utilities Commission
CRC--Commuter Rail Coalition
CTC--Centralized traffic control system
CVR--Cimarron Valley Railroad
Denver RTD--Denver Regional Transportation District
DOT--Department of Transportation
FEC--Florida East Coast Railway
FRA--Federal Railroad Administration
FRFA--Final Regulatory Flexibility Analysis
FTA--Federal Transit Administration
GAO--U.S. Government Accountability Office
GCOR--General Code of Operating Rules
G&U--Grafton and Upton Railroad
INRD--Indiana Rail Road Company
mph--miles per hour
MU--Multiple-unit
NS--Norfolk Southern Railway Company
NPRM--Notice of proposed rulemaking
NPSC--Nebraska Public Service Commission
OMB--Office of Management and Budget
PTC--Positive train control
RCL--Remotely controlled locomotive
RGPC--Rio Grande Pacific Corporation
RIA--Regulatory Impact Analysis
RIN--Regulatory Identification Number
RSAC--Railroad Safety Advisory Committee
RSSM--Rail-security sensitive materials
RWU--Railroad Workers United
SBA--Small Business Administration
SBA-Advocacy--Small Business Administration's Office of Advocacy
Secretary--Secretary of Transportation
SMART-TD--International Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division
SSO Agency--State Safety Oversight Agency
TFI--The Fertilizer Institute
TSA--Transportation Security Administration
TTD--Transportation Trades Department, AFL-CIO
TWU--Transport Workers Union of America
T&N--Texas and Northern Railway
UP--Union Pacific Railroad Company
UTA--Utah Transit Authority
Table of Contents for Supplementary Information
I. Executive Summary
II. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
B. Preemption
C. Comments Supporting the NPRM
1. Labor Organizations
2. Individual Commenters
3. Federal Congressional Commenters
4. State and Local Governmental Commenters
D. Tourist Railroad and Railroad Museum Industry Comment That
Asserted the NPRM Would Have No Impact
E. Comments Opposing the NPRM
1. Federal Congressional Commenters
2. Passenger Operations
3. Short Line and Regional Freight Railroads
4. Class I Freight Railroads
a. Alternative Crewmember Arrangements Including Expeditors,
Ground-Based Crewmembers, or Ground-Based Conductors
b. Train Operations in Other Countries
c. New Technology and Automated Operations
d. Transportation of Hazardous Materials
e. FRA Action on Regulating Crew Staffing
f. Risk Assessments and FRA's Review Standard
g. Remote Control Operations
F. Consideration of Requirements More Stringent Than Those
Proposed
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Assessment
G. Environmental Justice
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
I. Executive Summary
Purpose of the Regulatory Action
FRA is issuing this final rule to ensure that trains are adequately
staffed for their intended operation and railroads have appropriate
safeguards in place for safe train operations whenever using a one-
person train crew. The final rule establishes minimum crew size safety
standards for all trains, including a risk assessment requirement to
evaluate hazards and ensure risk mitigation for those railroads looking
to initiate one-person train crew operations in the most complex
operating environments nationwide, that will reduce the likelihood of
future accidents proactively. As FRA explained in the notice of
proposed rulemaking (NPRM), FRA has qualitatively discussed the
benefits because it does not have sufficient data to monetize those
benefits. However, those benefits have the potential to reduce the
likelihood of at least one type of foreseeable accident that is more
likely to occur with a one-person train crew than a two-person train
crew if a locomotive is not equipped with a safety device that will
stop the train when the locomotive engineer is physically
unresponsive--even if the type of accident foreseen has not yet
occurred. Other qualitative benefits include ensuring that railroads
are adequately protecting the safety of a one-person train crewmember
or members of the public under various foreseeable circumstances so
that employees and communities are not left
[[Page 25053]]
in an inferior safety position compared to when a train is staffed with
two crewmembers. Without this final rule, FRA has a limited ability to
address the totality of potential safety issues related to a reduction
of crew staffing levels. Currently, FRA can exercise its authority in
discrete instances through the agency's emergency order authority
(potentially after a serious accident) or as it reviews a passenger
operation's emergency preparedness plan under 49 CFR part 239. Also, no
other FRA regulatory effort focuses on the specific hazards and risks
associated with a one-person train crew operation, and there is no
industry-wide approach to mitigate any such hazards or risks.
Consistent with the purpose of existing requirements for the
transportation of hazardous materials by rail,\1\ FRA is mandating that
each train be assigned a minimum of two crewmembers when transporting
certain quantities and types of hazardous materials that have been
determined to pose the highest risk in transportation from both a
safety and security perspective, with some exceptions to ensure FRA's
awareness of the existing operation and/or require an FRA approval,
after an opportunity for public input. This final crew size rule is
necessary for FRA to proactively protect railroad employees, the
public, and the environment during train operations with a one-person
train crew, including trains transporting hazardous materials.
---------------------------------------------------------------------------
\1\ The proposed rule contains extensive background explaining
that the Federal government recognizes how essential hazardous
materials are to the U.S. economy and the well-being of its people,
and the various Federal requirements for the training of rail
employees and other safeguards to help ensure that these materials
will be shipped and arrive safely at their destinations. 87 FR
45564, 45576 (July 28, 2022).
---------------------------------------------------------------------------
This final rule allows FRA to identify and evaluate each railroad
that will be operating a freight train with a one-person train crew. By
collecting more information about one-person train crew operations, FRA
will be better informed to respond to questions about how to maintain
the safety of such an operation and be better positioned to take
actions that ensure future safety improvements.
This final rule also requires railroads with certain types of one-
person train crew operations to notify FRA that they are using such an
operation, provide a detailed description of the operation and, in some
circumstances, submit a risk assessment and request FRA's approval to
continue or initiate an operation. When FRA's approval is necessary,
this final rule allows FRA to prohibit the initiation of any proposed
one-person train crew operations that would not be as safe or safer
than a two-person minimum train crew operation. In addition to the
safety benefits from establishing minimum operational requirements, the
notification and approval procedures required by the final rule will
provide FRA with information and data that could be used in future
rulemakings, enforcement actions including emergency or compliance
orders/agreements, and safety analyses generally.
Further, the final rule is necessary to establish a process for the
public, including rail employees and their labor organization
representatives, to comment before FRA decides whether to grant special
approval on any railroad's petition to operate a train with a one-
person train crew. The public's participation is warranted because any
reduction of crew staffing from a two-person train crew could raise
numerous general and operational safety concerns.\2\ Further
exacerbating the safety concerns regarding any reduction in crew size
is that the average length of a Class I freight train has grown
substantially in recent years, to nearly 3 miles in some cases, as
train length and tonnage add to the complexity and safety challenges of
these operations.\3\
---------------------------------------------------------------------------
\2\ FRA's rules of practice generally encourage participation by
interested persons. 49 CFR 211.3. For example, public participation
is encouraged when FRA considers a waiver petition, and the dockets
for those petitions are publicly available. 49 CFR part 211, subpart
C. Some of FRA's rail safety regulations also require a railroad to
notify a labor organization's president of the submission to FRA of
a railroad safety program, such as a training or certification
program to ensure that the relevant representatives for employees
have an opportunity to participate in the process. See e.g., 49 CFR
240.103(b), 242.103(c), and 243.109(d). Because FRA has similarly
determined in this instance that employees and communities have an
interest in a railroad's operation relative to the issue of train
crew size safety, the final rule ensures the participation of
interested members of the public, including rail employees and their
labor organization representatives.
\3\ ``Rail Safety: Freight Trains Are Getting Longer, and
Additional Information is Needed to Assess Their Impact,'' U.S.
Government Accountability Office (GAO) (May 2019). <a href="https://www.gao.gov/products/gao-19-443">https://www.gao.gov/products/gao-19-443</a>.
---------------------------------------------------------------------------
In issuing this final rule, FRA will ensure that laws, regulations,
and orders ``related to railroad safety'' with respect to train crew
size are nationally uniform \4\ by preventing varying State laws
regulating crew size from creating a patchwork of potentially
inconsistent rules governing train operations across the country.
Without this rule, railroads could be subjected to a different crew
staffing law in every State in which they operate, as there would be no
assurance that State laws governing crew size would be based on an
analysis or determination concerning impacts on railroad safety. The
lack of a uniform standard would likely result in additional costs and
operational inefficiencies.
---------------------------------------------------------------------------
\4\ 49 U.S.C. 20106(a)(1).
---------------------------------------------------------------------------
Lastly, this final rule is necessary because the latest annual rail
safety data reflects some troubling trends that point toward a need for
heightened caution and awareness in railroad safety and operational
planning. For instance, a second crewmember provides the opportunity to
secure a train with hand brakes, as a one-person train crew could not
do so without violating railroad air brake and train handling
requirements necessary to comply with FRA's regulations requiring that
``railroads shall develop and implement a process or procedure to
verify that the applied hand brakes will sufficiently hold the
equipment with the air brakes released [and] that a train's air brake
shall not be depended upon to hold equipment standing unattended.'' \5\
The rate for all human factor caused accidents increased from 0.95
accidents per million train miles to 1.34 between 2013 and 2022, a 41.1
percent increase, and from 1.18 accidents per million train miles to
1.34 between 2021 and 2022, a 13.6 percent increase.\6\ The percentage
of train accidents attributed solely to human factors (as reflected in
FRA's accident reporting cause codes) increased from 38.5 percent to
45.6 percent between 2013 and 2022. The number of main track train
handling and make-up accidents attributed to human factor cause codes
has increased from 28 in 2013 to a range between 36 and 77 (reflecting
occurrences between 2018 and 2022), a 28.6 to 75 percent increase. When
normalizing this data by the number of train miles, it shows a rate
increase from 0.04 in 2013 to 0.07 in 2022, reaching as high as 0.10
and 0.13 during this period, a range that increased 25 to 225 percent
over the five-year period between 2018 and 2022.
---------------------------------------------------------------------------
\5\ 49 CFR 232.103(n)(1) and (2). In the event that an
uncontrolled train movement causes an accident or derailment, the
presence of a second crewmember who failed to apply sufficient hand
brakes does not negate the need for a second crewmember.
Contributing causes to such derailments and other preventable
accidents could include improper railroad rules or training, or a
failure of the second crewmember to comply with such requirements.
In contrast, the absence of the second crewmember restricts the
options immediately available and potentially leaves the one-person
train crewmember vulnerable, without viable mitigation measures
available until assistance can arrive. This dilemma can largely be
avoided with a proper risk assessment.
\6\ The data described in this paragraph is available or derived
from data publicly available on FRA's website. <a href="https://data.transportation.gov/stories/s/FRA-Safety-Data/dakf-i7zd">https://data.transportation.gov/stories/s/FRA-Safety-Data/dakf-i7zd</a>.
---------------------------------------------------------------------------
[[Page 25054]]
Summary of Major Provisions
In Sec. 218.123, the final rule requires railroads to staff every
train operation with a minimum of two crewmembers (including a
locomotive engineer and an additional crewmember who will typically be
a conductor) that travel with the train and can directly communicate
with each other even if one crewmember is not in the locomotive cab,
with certain one-person train crew exceptions permitted under specified
circumstances.
Sections 218.125 through 218.131 of this final rule provide
criteria for instituting one-person train crew operations in certain
circumstances through exceptions to the two-crewmember mandate,
conditional exceptions based on the type of operation, or a special
approval process option. These avenues of relief address operations by
small businesses, which for purposes of this rulemaking are primarily
short lines and regional railroads. The final rule will give small
businesses greater flexibility without sacrificing safety, since the
operations of railroads that qualify as small businesses are generally
less complex than the operations of Class I railroads.
Sections 218.129 and 218.131 of this final rule require each
railroad with certain types of one-person train crew operations to
abide by minimum requirements notably to: (1) prevent uncontrolled
train movements if a one-person train crew were to become
incapacitated; (2) maintain communication between a railroad employee,
typically a dispatcher, a supervisor or manager, or an intermittently
assisting crewmember, and the one-person train crewmember to convey
operational instructions and ensure the one-person crewmember's
personal safety; (3) track the location of a train operated by a one-
person crew in case communication is lost and a rescue operation needs
to be initiated; and (4) establish protocols that ensure rail employees
can take mitigation measures that provide a level of safety that is as
safe or safer than a two-person train crew operation to address certain
situations, such as an accidental or non-accidental release of any
hazardous material, with the one-person train crew operation.
Section 218.129 of this final rule, which contains conditional
exceptions based on the type of operation, requires the lead locomotive
of certain operations with a one-person crew be equipped with an
alerter \7\ and that the crewmember must test the alerter to confirm it
is working before departure. Without a working alerter on the
controlling locomotive, if a one-person train crew becomes
incapacitated while the train is moving, the train would continue to
operate down the track out of control without another crewmember on-
board who could apply the emergency brake. In contrast, with an
alerter, the train would be stopped with an emergency brake application
after a designated period of inactivity by the crewmember.\8\
---------------------------------------------------------------------------
\7\ 49 CFR 229.5 (defining alerter as a device or system
installed in the locomotive cab to promote continuous, active
locomotive engineer attentiveness by monitoring select locomotive
engineer-induced control activities. If fluctuation of a monitored
locomotive engineer-induced control activity is not detected within
a predetermined time, a sequence of audible and visual alarms is
activated to progressively prompt a response by the locomotive
engineer. Failure by the locomotive engineer to institute a change
of state in a monitored control, or acknowledge the alerter alarm
activity through a manual reset provision, results in a penalty
brake application that brings the locomotive or train to a stop).
\8\ See id. and see e.g., 49 CFR 229.140 (requiring that an
alerter warning timing cycle interval be based on a formula that
includes a calculation of train speed and that for locomotives
operating at speeds below 20 mph, the interval shall be between 110
seconds and 130 seconds).
---------------------------------------------------------------------------
In addition to an alerter requirement for certain one-person train
crew operations in Sec. 218.129, the final rule establishes other
minimum safety requirements depending on the type of one-person train
crew operation, such as for Class II and III legacy freight train
operations (i.e., currently existing one-person crew operations
established for at least two years before the effective date of the
final rule), certain other Class II and III freight railroad train
operations, work train operations, helper service train operations, and
lite locomotive train operations. For instance, the final rule requires
that each railroad with these types of operations, excepted from the
final rule's two-crewmember mandate, must adopt and comply with
operating rules that provide for regular and effective communication
with a one-person train crew to ensure the safety of the train and that
one-person train crewmember's safety. Short lines do not always use
dispatchers, and short line trains may not have a working radio or
other working wireless communications in the cab of a controlling
locomotive, so the requirement to provide for regular and effective
communication is an important safeguard.\9\ Further, the final rule
requires that each railroad with these types of one-person train crew
operations adopt and comply with operating rules providing for
mitigation measures that are as safe or safer than a two-person minimum
train crew operation to ensure the railroad will address certain
situations where a second crewmember would typically assist with
mitigation, such as when responding to accidents, derailments, releases
of hazardous materials, and requests from an emergency responder to
unblock a highway-rail grade crossing in response to a potentially
life-threatening situation. The final rule requires that each Class II
and III freight railroad that (a) plans to initiate a one-person train
crew operation after the final rule's effective date and (b) will not
be transporting certain types or quantities of hazardous materials
determined to pose the highest risk in transportation, must provide FRA
with written notification of the operation before commencing the
operation, in addition to complying with the alerter, communication,
and mitigation measures requirements.
---------------------------------------------------------------------------
\9\ 49 CFR 220.9; 63 FR 47182, 47188 (Sept. 4, 1998) (explaining
in the section-by-section analysis that ``[n]o communication
equipment is required if a train does not transport passengers or
hazardous material and does not engage in joint operations or
operate at greater than 25 miles per hour'').
---------------------------------------------------------------------------
The final rule establishes an implementation schedule in Sec.
218.129 that phases in compliance for certain specified one-person
train crew operations, such as for each Class II and III railroad with
a legacy one-person train crew freight train operation, that provides
FRA with written notice of the operation, and for any railroad with a
one-person train crew work train operation, helper service train
operation, or lite locomotive train operation. The implementation
schedule requires these specified exceptions to the two-crewmember
mandate to be governed by operating rules addressing the communication
requirements and mitigation measures requirements no later than 90 days
from the effective date of this final rule, and the working alerter
requirement to be met no later than two years from the effective date
of this final rule. FRA encourages each railroad with one or more of
these types of one-person train crew operations to implement the
requirements sooner than the implementation schedule requires but finds
that the schedule will provide each railroad with sufficient time
either to comply with the alerter, communication, and mitigation
measures requirements or provide for a second crewmember.
To ensure that each railroad adequately identifies hazards and
mitigates risks when initiating or continuing certain new one-person
train crew operations, Sec. 218.131 of this final rule requires a
railroad's petition for special approval of a one-person train crew
operation to include a risk
[[Page 25055]]
assessment. The purpose of a risk assessment is to evaluate risk in an
objective manner by following a decision-making process designed to
systematically identify hazards, assess the degree of risk associated
with those hazards, and based on those assessed risks, identify and
implement measures to minimize or mitigate the risks to an acceptable
level. Except for certain one-person legacy operations,\10\ FRA will
require a risk assessment and a special approval process for most one-
person train crew operations that will be transporting 20 or more car
loads or intermodal portable tank loads of certain hazardous materials
or one or more car loads of hazardous materials designated as rail-
security sensitive materials (RSSM) as defined by the Department of
Homeland Security. The requirements in the final rule focus on known
safety and security risks associated with operating trains transporting
large amounts of hazardous materials and with transporting the
hazardous materials known to present the greatest safety and security
risks. As explained in the NPRM, FRA considers: train crewmembers to be
``hazmat employees'' requiring specific types of training; that these
training requirements are substantial; that these various types of
training are required initially and recurrently at least once every
three years; and that, in addition to FRA, there are Federal agencies
that enforce requirements regarding the safety and security of
hazardous materials shipments.\11\ Thus, the transportation of
hazardous materials raises various specific safety hazards, such as the
potential for an accidental or non-accidental release of a hazardous
material, that would typically create additional tasks for a train crew
to communicate information about an immediate or developing safety
situation and/or take immediate or other appropriate action to mitigate
its consequences, when safe to do so. For these reasons, the presence
of certain types or quantities of hazardous materials creates the
potential for a greater negative consequence than when a train does not
contain such materials. Without a properly completed risk assessment,
FRA would be unable to accurately assess whether a railroad has taken
appropriate measures to compensate for the removal of a second train
crewmember. In the circumstance that a railroad wants to continue a
one-person train crew operation that does not meet the legacy operation
conditions, the final rule provides conditions under which a railroad
may continue those operations while it drafts and submits a special
approval petition and awaits FRA's decision on that petition.
---------------------------------------------------------------------------
\10\ Among other operations, Sec. 218.129(a)(1) does not
require a risk assessment or a special approval process for a Class
II and III railroad's legacy one-person train crew freight
operation, i.e., an operation existing before the effective date of
the final rule, that has been established for at least two years
before the effective date of the final rule. However, such a freight
railroad with a legacy one-person train crew operation must provide
certain information about the operation in a written notification to
FRA, and the railroad will be required to establish operating rules
addressing the communication requirements and mitigation measures
requirements no later than 90 days from the effective date of this
final rule and to meet the working alerter requirement no later than
two years from the effective date of this final rule.
\11\ 87 FR 45576-78.
---------------------------------------------------------------------------
As FRA explained in the NPRM, passenger and tourist train
operations normally have a locomotive engineer located in the
locomotive cab, and a passenger conductor, and potentially one or more
assistant conductors, riding in the passenger cars with the
passengers.\12\ FRA makes clear that this common crew configuration is
not considered a one-person train crew operation. In Sec. 218.125, the
final rule exempts from the two-crewmember mandate specific passenger
and tourist train operations that do not pose significant safety risks
to railroad employees, the public, or the environment, including
tourist train operations that are not part of the general system of
transportation. Passenger or tourist operations that do not fall within
the Sec. 218.125 exemptions must petition FRA for a special approval
under the procedures provided in Sec. 218.131.
---------------------------------------------------------------------------
\12\ 87 FR 45579-80.
---------------------------------------------------------------------------
In the context of this rulemaking, a risk assessment is the process
of determining, either quantitatively or qualitatively, or both, the
level of risk associated with a proposed train operation staffed with a
one-person train crew, including mitigating the risks to an acceptable
level. Section 218.133 of this final rule provides the minimum content
that must be included in a railroad's risk assessment and the
procedures for petitioning FRA to use an alternate methodology for
assessing the risk of an operation utilizing a one-person train crew.
This final rule adds appendix E to part 218 to provide guidance on how
a railroad may prepare a risk-based hazard analysis, as part of its
risk assessment, and compare the risks to determine if a proposed one-
person train crew operation will be as safe or safer than a two-person
minimum train crew operation, when all mitigations are in place.
In Sec. 218.135, the final rule specifies how a railroad may
petition FRA for special approval of a one-person train crew operation
not covered by an exception. The special approval procedure requires
FRA to publish a notice in the Federal Register soliciting public
comment on each petition. All documents will be filed in a public
docket and will be accessible through the internet. The special
approval procedure permits FRA to reopen consideration of the petition
for cause stated. When FRA decides a petition, or reopens consideration
of a petition, it will send written notice of the decision to the
petitioner, and the decision will be published in the docket. Further,
a railroad making a material modification to an operation, previously
approved by FRA, will be required to file both a description of the
modification and either a new or updated risk assessment, at least 60
days before proposing to implement any such modification. FRA is
requiring that a material modification not be implemented until
approved. The requirement to seek special approval is not expected to
delay action on any operation because each railroad would need an
equivalent timeframe to plan for the process of reducing crew size in
advance of implementation of that operation even in the absence of this
rule.
Section 218.137 of this final rule includes an annual reporting
requirement for railroads that receive special approval to conduct an
operation with a one-person train crew under this subpart. The annual
railroad responsibilities after receipt of special approval include a
requirement to conduct a formal review and analysis of those
operations. The annual reporting requirement ensures that each railroad
will regularly review the safety of its operation and the accuracy of
its risk assessment and will provide FRA with sufficient data to
identify and analyze any safety trends in the approved operation.
Further, the annual reporting requirement aligns with the general
administration of FRA's safety program and fulfilment of its statutory
requirements.\13\
---------------------------------------------------------------------------
\13\ See e.g., 49 U.S.C. 103(j) and (k) (requiring the FRA
Administrator to develop long-range national rail plans, and
performance goals and reports for those plans that are typically
updated annually).
---------------------------------------------------------------------------
Finally, as explained in greater detail in the discussion of
comments and conclusions, the final rule clarifies and updates the NPRM
in some respects based upon the comments received. For instance, as the
NPRM did not define what FRA meant by the term ``one-person train
crew'' and commenters
[[Page 25056]]
expressed confusion, FRA has clarified that a ``one-person train crew''
means: (1) only one person is assigned to the train as the train crew
and that single, assigned person will be performing the duties of both
the locomotive engineer and the conductor; or (2) two or more persons
are assigned to a train as the train's crew, but only the locomotive
engineer travels on the train when the train is moving because the
remainder of the train crew, including the conductor if the locomotive
engineer is not the assigned conductor, is assigned to intermittently
assist the train's movements. The requirements in this final rule will
not apply to a train operation controlled by a remote control operator,
even if that remotely controlled train is operated by a one-person
train crew, because of the protections already provided for remote
control operations under existing requirements in FRA's railroad
locomotive safety standards, including a harness with a breakaway
safety feature, an operator alertness device, and an operator tilt
feature with an automatic notification to the railroad to enable prompt
attention in the event the tilt feature is activated.\14\ There are two
existing passenger train operations with one-person train crews for
which FRA has already approved the operation's required passenger train
emergency preparedness plans under existing regulatory requirements,
making it unnecessary for those railroads to submit a special approval
petition to FRA as proposed. The final rule does not include the
proposed requirement for railroads seeking to implement automated
operations to file a petition seeking FRA's special approval. Such a
requirement is unnecessary because railroads would still need to seek
waivers, regulatory changes, or other FRA approval if the technology
for the automated operations does not comply with other rail safety
requirements.
---------------------------------------------------------------------------
\14\ See 49 CFR 229.15 (requiring design, operation, inspection,
testing, and repair standards for remote control locomotives).
---------------------------------------------------------------------------
The final rule contains some clarifications and updates from the
NPRM in how it treats freight railroads, especially Class II and III
railroads that include the short line and regional railroads. For
instance, the final rule will not prohibit all one-person train crew
freight operations hauling certain types or quantities of hazardous
materials, as the final rule provides for some exceptions for existing
or initiating operations. Those Class II and III railroads with a
legacy one-person train crew freight operation that is established at
least two years before the effective date of this final rule will not
need FRA's special approval to continue the operation as proposed but
will need to provide FRA with a detailed written notice describing the
parameters of the operation within 90 days of the effective date of the
final rule. Similarly, the final rule does not include a requirement
for Class II and III railroads initiating a new, non-legacy, one-person
train crew freight operation not transporting hazardous materials of
the types or quantities specified to petition FRA for special approval
and, instead, permits such operations, under certain conditions--
including when the railroad provides FRA with a detailed written notice
describing the parameters of the operation before commencing the
operation. The exceptions in the final rule for Class II and III
railroads have made unnecessary the narrower, proposed small railroad
exception, which would have applied only to small railroads with fewer
than 400,000 annual employee work hours, and thus the final rule does
not include that proposed exception. Although various proposed
exceptions contained additional safety requirements, the final rule
streamlined those additional requirements and has established a
compliance schedule for implementing them rather than the proposal that
would have required implementation on the effective date of the final
rule.
The final rule requires additional safety conditions to be met for
the proposed one-person crew helper service and lite locomotive(s)
consist exceptions as those one-person crew train crew operations would
pose the same safety concerns as other exceptions in the final rule
that require additional safety conditions to be met. In addition, FRA
has modified the risk assessment requirements, allowing a railroad to
make its determination either quantitatively or qualitatively, or both,
rather than only quantitatively as expressly proposed. Finally, FRA has
changed the review standard for a special approval petition from
determining that an operation is ``consistent with railroad safety'' to
determining whether approving the operation described in the petition
is ``as safe or safer'' than a two-person train crew operation, as it
will more clearly allow each railroad to compare the operation to the
baseline of a two-crewmember operation.
[[Page 25057]]
Implementation Schedule for One-Person Train Crew Operations \15\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Petition for
special approval Add operating Add operating Add alerters to
Notify FRA of one- with risk rules to address rules for one- locomotives and Annual review
Type of one-person operation person operation assessment for one- safety of certain person crew add associated analysis report
\16\ person operation situations \18\ member's safety operating rules \21\
\17\ \19\ \20\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class II/III legacy freight September 6, 2024. Not Applicable (N/ September 6, 2024. September 6, 2024. June 9, 2026...... N/A.
(existing 2 years) \22\. A).
Class II/III freight non-legacy Yes, provide N/A............... Yes, comply when Yes, comply when Yes, comply when N/A.
or new, and no prohibited before commencing commencing commencing commencing
hazmat \23\. operation. operation. operation. operation.
Work trains not exceeding 4,000 N/A............... N/A............... September 6, 2024. September 6, 2024. June 9, 2026...... N/A.
trailing tons; \24\ Helper
service; \25\ and, Lite
locomotive(s) \26\.
Existing but non-legacy June 23, 2024 \28\ August 7, 2024.... Yes, provide as Yes, provide as Yes, provide as Yes, provide no
(existing, but less than 2 part of special part of special part of special later than March
years) option to continue approval petition. approval petition. approval petition. 31 of the
pending FRA-approval \27\. following year.
Other new (freight with or N/A............... Yes............... Yes, provide as Yes, provide as Yes, provide as Yes, provide no
without prohibited hazmat, part of special part of special part of special later than March
passenger, or tourist) approval petition. approval petition. approval petition. 31 of the
operations \29\. following year.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs and Benefits
---------------------------------------------------------------------------
\15\ This implementation schedule summarizes the requirements
and is not intended to substitute for an exact description of the
complete requirements.
\16\ Sec. 218.129(b).
\17\ Sec. 218.131 through Sec. 218.135.
\18\ Sec. 218.129(c)(1).
\19\ Sec. 218.129(c)(2).
\20\ Sec. 218.129(c)(3).
\21\ Sec. 218.137.
\22\ Sec. 218.129(a)(1).
\23\ Sec. 218.129(a)(2).
\24\ Sec. 218.129(a)(3).
\25\ Sec. 218.129(a)(4).
\26\ Sec. 218.129(a)(5).
\27\ Sec. 218.131(a)(2).
\28\ Sec. 218.131(a)(2)(i). Unlike the other notification
requirements, this notification can be limited to a summary of the
operation and the name, title, address, telephone number, and email
address of the primary person(s) to be contacted regarding the
written notice and the operation.
\29\ Sec. 218.131.
---------------------------------------------------------------------------
FRA has analyzed the economic impact of this final rule. FRA
estimated the costs associated with alerters, operating rules,
notification to FRA, risk assessments and special approvals, annual
reporting after receipt of special approval, and Government
administration. FRA qualitatively discusses the benefits but does not
have sufficient data to quantify those benefits.
The following types of railroads with one-person train crew
operations are required, based on a compliance date schedule, to: (1)
notify FRA; (2) adopt and comply with operating rules necessary to
ensure the one-person train crewmember's safety and that the railroad
is prepared to take appropriate mitigation measures in response to
certain safety-critical situations; and (3) equip a one-person train
crew's controlling locomotive with an alerter:
<bullet> Class II and Class III freight railroads with a legacy
one-person train crew operation established for at least two years
before the effective date of the final rule.
<bullet> Class II and Class III freight railroads with a non-legacy
one-person train crew operation that do not transport specific types
and quantities of hazardous materials as specified in Sec. 218.123(c).
The following types of railroads with a one-person train crew
operation require special approval from FRA and must conduct a risk
assessment:
<bullet> All Class I railroads and all one-person passenger
railroad operations established after the effective date of the final
rule.
<bullet> All Class II and III freight railroads with a non-legacy
one-person train crew operation that transports certain types and
quantities of hazardous materials as specified in Sec. 218.123(c).
Work train operations, helper service, and lite locomotive
operations are required, based on a compliance date schedule, to: (1)
adopt and comply with operating rules necessary to ensure the one-
person train crewmember's safety and that the railroad is prepared to
take appropriate mitigation measures in response to certain safety-
critical situations; and (2) equip a one-person train crew's
controlling locomotive with an alerter.
FRA estimates the 10-year costs of the final rule to be
approximately $6.6 million, discounted at 7 percent. The annualized
costs will be approximately $0.9 million discounted at 7 percent. The
following table shows the total costs of this final rule, over the 10-
year analysis period.
Total 10-Year Discounted Costs
[2022 Dollars] \30\
----------------------------------------------------------------------------------------------------------------
Annualized Annualized
Category Total cost, 7 Total cost, 3 cost, 7 cost, 3
percent ($) percent ($) percent ($) percent ($)
----------------------------------------------------------------------------------------------------------------
Alerters (Legacy Operations).................... 2,176,402 2,217,233 309,871 259,927
Alerters (New Operations)....................... 2,251,306 2,483,470 320,535 291,138
Operating Rules (Existing Operations)........... 119,954 119,954 17,079 14,062
Operating Rules (New Operations)................ 280,824 308,591 39,983 36,176
Notification (Existing Operations).............. 185,114 185,114 26,356 21,701
Notification (New Operations)................... 111,133 122,593 15,823 14,372
Risk Assessment and Special Approval (Class I).. 560,745 570,571 79,837 66,888
Risk Assessment and Special Approval (Class II 162,446 164,506 23,129 19,285
and III).......................................
[[Page 25058]]
Risk Assessment (Material Modifications)........ 93,031 111,178 13,246 13,033
Annual Reporting................................ 182,821 221,284 26,030 25,941
Government Administrative Cost.................. 513,100 579,523 73,054 67,938
---------------------------------------------------------------
Total Costs................................. 6,636,876 7,084,016 944,942 830,463
----------------------------------------------------------------------------------------------------------------
The primary benefit of this rule is to ensure that each train is
adequately staffed and has appropriate safeguards in place for safe
train operations under all operating conditions. This final rule will
also ensure that several significant operational safety issues with
one-person train crew are addressed and allow FRA to collect
information and data on one-person train crews. For instance, this
final rule addresses a safety issue by requiring alerters for Class II
and III railroads operating with a one-person train crew that do not
already have these safety devices installed on their locomotives for
that type of operation. Alerters will ensure that if a crewmember
becomes physically unresponsive, the train will apply emergency
brakes--a function typically left to a conductor or other second
crewmember.
---------------------------------------------------------------------------
\30\ Numbers in this table and subsequent tables may not sum due
to rounding. As discussed further in section VI.I of the RIA,
quantified costs do not include costs that could be incurred in
order to mitigate risks associated with a reduction in the number of
crewmembers. The costs for operating rules (existing operations) and
notification (existing operations) will solely be incurred in year
1. Therefore, the discounted costs are the same for 7% and 3% (since
values are not discounted in year 1). However, when annualizing
costs over 10 years, the discounted costs at 7% and 3% are different
because they are annualized with different discount rates.
---------------------------------------------------------------------------
This final rule also ensures railroads address safety issues that
may arise with one-person train crew operations by requiring operating
rules that address the communication and safety of the one-person train
crew.
To operate with one-person train crews, freight railroads
transporting certain types and quantities of hazardous materials must
identify, evaluate, and address safety concerns that may arise from
such operations by submitting a risk assessment to FRA for approval
unless the railroad is a Class II or III short line or regional
railroad and has established a legacy operation under the
exception.\31\
---------------------------------------------------------------------------
\31\ Sec. Sec. 218.129(a)(1) and 218.131.
---------------------------------------------------------------------------
The loss of a second crewmember to perform safety functions creates
new hazards and/or increases the risk of certain existing hazards
unless mitigating actions are taken.\32\ The safety requirements in
this final rule will allow the rail industry to integrate technologies
to facilitate operations with a one-person train crew, but under the
condition that safety will not be degraded.
---------------------------------------------------------------------------
\32\ As explained in the NPRM, ``the implementation of a one-
person operation, without any off-setting measures, may render
existing rail safety requirements either less effective or
ineffective.'' 87 FR 45573.
---------------------------------------------------------------------------
Legal Authority
FRA is establishing regulations concerning train crew size safety
requirements based on the statutory general authority of the Secretary
of Transportation (Secretary). The general authority states, in
relevant part, that the Secretary ``as necessary, shall prescribe
regulations and issue orders for every area of railroad safety
supplementing laws and regulations in effect on October 16, 1970.''
\33\ The Secretary delegated this authority to the Federal Railroad
Administrator.\34\ Additionally, as described below, the Secretary has
the specific statutory duty to prescribe regulations and issue orders
for the certification of any train crewmembers who operate a locomotive
or are assigned train conductors.
---------------------------------------------------------------------------
\33\ 49 U.S.C. 20103.
\34\ 49 CFR 1.89(a); 49 U.S.C. 103(g).
---------------------------------------------------------------------------
By statute, the Secretary is required to ``prescribe regulations
and issue orders to establish a program requiring the licensing or
certification . . . of any operator of a locomotive.'' \35\ FRA
fulfilled that statutory requirement in 1991 by issuing a regulation
requiring each railroad to file a locomotive engineer certification
program with FRA.\36\ Each railroad's program must specify how the
railroad plans to make the determinations necessary to certify each of
its locomotive engineers, as well as ensure that the certified
locomotive engineers of other railroads are qualified to operate safely
on the controlling railroad's track.\37\ A locomotive engineer's main
task is to operate the train safely. Other important tasks central to
safe operation include: ensuring that the locomotive mechanical
requirements are met; coordinating with the conductor about operational
details; and, under the conductor's supervision, interpreting train
orders, signals, and operating rules.
---------------------------------------------------------------------------
\35\ 49 U.S.C. 20135.
\36\ 56 FR 28254 (June 19, 1991), 49 CFR part 240.
\37\ 49 CFR part 240, subpart B--Component Elements of the
Certification Process, and Sec. 240.229 (requiring certain action
on the part of a railroad controlling the conduct of joint
operations with another railroad). Additional guidance was provided
in an interpretation published August 29, 2008. 73 FR 50883.
---------------------------------------------------------------------------
FRA also administers and enforces statutorily mandated \38\
conductor certification requirements.\39\ FRA defines a conductor as
the crewmember in charge of a train or yard crew,\40\ and the
conductor's job requires supervising train operations so they are safe
and efficient. The conductor's responsibilities include: managing the
train consist; coordinating with the locomotive engineer for safe and
efficient en route operation; interacting with dispatchers, roadway
workers, and others outside the locomotive cab; and dealing with
unexpected situations (e.g., mechanical problems).\41\ In addition, as
locomotive and train technologies have become more complex in recent
years, a conductor (or second crewmember) can assist a locomotive
engineer by responding to technology prompts or conveying information
displayed so that the engineer can maintain focus on the train's
controls and movement. The purpose of the conductor certification
regulation is to ensure that only those persons meeting minimum Federal
safety standards serve as conductors.
[[Page 25059]]
When FRA published the conductor certification final rule, the agency
made clear that the rule should not be read as FRA's endorsement of any
particular crew consist arrangement.\42\ However, if only one railroad
employee is assigned as a train crew, the conductor certification rule
requires that the single assigned crewmember be certified as both a
locomotive engineer and a conductor.\43\ This final rule maintains that
one-person train crew option but adds restrictions to ensure safety,
based on the type of operation.
---------------------------------------------------------------------------
\38\ 49 U.S.C. 20163, ``Certification of train conductors.''
\39\ 49 CFR part 242, ``Qualification and Certification of
Conductors.''
\40\ 49 CFR 242.7 (defining ``conductor'').
\41\ Rosenhand, Hadar, Emilie Roth, and Jordan Multer, Cognitive
and Collaborative Demands of Freight Conductor Activities: Results
and Implications of a Cognitive Task Analysis, FRA (July 2012).
\42\ 76 FR 69802, 69825 (Nov. 9, 2011).
\43\ 49 CFR 240.308(c) and 242.213(d).
---------------------------------------------------------------------------
In this regard, the final rule is an element of FRA's holistic
approach to address a range of hazards related to the operation of
trains. As noted above, FRA is authorized by statute to prescribe
regulations and issue orders for ``every area of railroad safety''
supplementing laws and regulations in effect on October 16, 1970, as
well as to continue to administer and enforce specific statutory
mandates, including locomotive engineer and conductor certification
requirements.\44\ Specifically, given FRA's mandate to ``consider the
assignment and maintenance of safety as the highest priority,
recognizing the clear intent, encouragement, and dedication of Congress
to the furtherance of the highest degree of safety in railroad
transportation,'' \45\ FRA finds issuance of this final rule on train
crew size safety both inherent in its statutory authority and in
fulfillment of its charge from Congress. However, FRA recognizes that
certain provisions focus on unique factors. Therefore, FRA finds that
the various provisions of this final rule are severable and able to
operate functionally if severed from each other. In the event a court
were to invalidate one or more of this final rule's unique provisions,
the remaining provisions should stand, thus allowing FRA to continue to
fulfill its congressionally authorized role.
---------------------------------------------------------------------------
\44\ See 49 U.S.C. 103, 20103(a).
\45\ Id. at 103(c).
---------------------------------------------------------------------------
II. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
On July 28, 2022, FRA published the NPRM proposing train crew size
safety requirements and provided commenters 60 days to file
comments.\46\ On September 22, 2022, FRA extended the comment period by
an additional 67 days.\47\ On October 27, 2022, FRA scheduled a public
hearing for December 14, 2022, and extended the comment period to
December 21, 2022, an additional 19 days, to provide the public with
additional time to comment on the proposed rule or submit a response to
views or information provided at the public hearing, or both.\48\ A
transcript of the public hearing is available in the docket.\49\
---------------------------------------------------------------------------
\46\ 87 FR 45564.
\47\ 87 FR 57863.
\48\ 87 FR 65021.
\49\ <a href="https://www.regulations.gov/document/FRA-2021-0032-13184">https://www.regulations.gov/document/FRA-2021-0032-13184</a>.
---------------------------------------------------------------------------
During the 146-day comment period, the docket recorded
approximately 13,576 separate entries for written comments with about
13,441 of those comments filed by individuals in their own names. In
other words, about 99 percent of the written comments submitted to the
docket were from individual commenters who were not filing their
comment officially on behalf of an organization, group, or business. Of
those individual commenters, about 13,377 expressed support for the
NPRM and 64 opposed it, meaning less than approximately a half percent
of individual commenters expressed opposition to the proposed rule. FRA
estimates that more than half of the comments filed by individual
citizen commenters used a form letter created by a labor organization
or other organized interest group. In general, commenters who signed
form letters in support of a two-person train crew mandate expressed
the same types of safety concerns FRA raised in the NPRM. This final
rule addresses those safety concerns to ensure the safety of rail
operations, one-person train crewmembers, and the public. When
summarizing a form letter, a footnote will cite to a single example.
The docket's recorded number of comments does not include the
comments received through oral testimony at the public hearing on
December 14, 2022, and there are other reasons why the 13,576 count
should be considered only an approximation. As some entries included
multiple comments or were signed by multiple people, there were likely
more commenters than the number of comments recorded by the docket.
Further, FRA discovered that some commenters sent in multiple comments.
Because the comment period was extended twice, some commenters sent in
a shorter comment before any extensions were granted, and then may have
sent in more information as they developed further input. Every comment
received was considered by the agency in finalizing this rule.
The order of the topics or comments discussed in this document is
not intended to reflect the significance of the comment raised or the
standing of the commenter. Additionally, this summary of the comments
is intended to provide both a general understanding of the overall
scope and themes raised by the commenters, as well as give some
specific descriptions to provide context. Not every comment is
described in this summary and, whenever counts of comments are
provided, the counts are approximate as some comments could not be
easily grouped with others. Comments regarding the proposed Regulatory
Impact Analysis (RIA) are addressed in the RIA to the final rule.
In addition to the following summary of the general comments here,
FRA used computer-based data analysis to identify common elements among
comments.\50\ FRA's computer-based data analysis often provided
confirmation of FRA's manual estimates and insight, and additional
insight into the written comments that would have been particularly
difficult to discern based on human review alone. For example, the
computer-based analysis more accurately identified comments that were
identical than a human could track manually.\51\ The computer-based
data analysis could also readily find comments that used the same key
words to allow FRA to review those comments together.\52\ There were
also many short comments and the computer-based data analysis was able
to pick out those shorter comments and display them all in a few pages
that could be more easily accessed and read.\53\ The computer-based
approach used natural language processing, specifically topic modeling,
to extract major themes for the comments received based on the most
frequently used words and phrases, which then assisted FRA in
identifying the central themes raised by the commenters.\54\
---------------------------------------------------------------------------
\50\ The 23-page computer-based data analysis report of the
written comments was placed in the docket, FRA-2021-0032, with the
other agency documents under the ``Browse Documents'' tab.
\51\ The computer-based data analysis found one particular
comment duplicated 2,065 times and which cites FRA-2021-0032-1914 as
an example.
\52\ For example, on pages 9-10 of the computer-based data
analysis report, the term ``cut crossings'' was found used in
approximately 45 comments.
\53\ For instance, the computer-based data analysis report
displays comments with less than 75 characters on pages 11-14.
\54\ On pages 15-21, the computer-based data analysis report
includes examples of the 10 themes identified when top words, i.e.,
commonly used words, were extracted through topic modeling. For
instance, a select group of top words included: emergency, life
medical, community, supply chain, death, derailments, and
vulnerable.
---------------------------------------------------------------------------
Based on the comments received, FRA is revising aspects of the
approach reflected in the NPRM, which can be
[[Page 25060]]
summarized as follows: (1) the final rule removes the previously-
proposed strict prohibition on the transportation of some hazardous
materials with a one-person train crew; (2) comments on FRA's proposed
RIA led FRA to consider additional information and refine its analysis;
(3) comments requesting more time to comply with any new minimum
requirements to allow for planning, operational changes, or hiring and
training of additional crewmembers led FRA to extend those compliance
dates; (4) comments regarding the complexity of, and data requirements
for, the risk assessment, along with concerns regarding the analytical
methods required, led FRA to simplify the requirement, change the
review standard so that a railroad can compare the operation to the
baseline of a two-crewmember operation, provide guidance in an
appendix, and retain an option for railroads to request use of
alternative risk assessment methodologies as part of the special
approval procedure; (5) comments outlining anticipated difficulties in
complying with the risk assessment proposed in the NPRM led FRA to
remove the risk assessment requirement and substitute a notification
requirement for Class II or III freight railroads under certain types
of specified operations; (6) comments about the proposed requirements
for remote control operations, in addition to FRA's analysis that
existing regulations already provided for minimum safety protections,
led FRA to remove the subject from the final rule; and (7) comments on
the potential preemptive effect of a Federal rail safety regulation on
currently existing State-by-State regulation relating to the subject
matter of crew size safety requirements led FRA to clarify what the
agency understands will be the legal impact of this final rule.
B. Preemption
In the NPRM, FRA included in the background a summary of prior crew
staffing rulemaking efforts. The summary discussed the decision issued
by the U.S. Court of Appeals for the Ninth Circuit vacating FRA's
withdrawal of the 2016 NPRM, as well as FRA's preemption determination
contained in that withdrawal, and remanding the rulemaking to FRA.\55\
The NPRM also included discussion of FRA's legal authority to issue the
regulation \56\ and the statutory preemption provisions found at 49
U.S.C. 20106.\57\ As noted in the NPRM, a final rule issued by FRA
``would cover the same subject matter as the State laws regulating crew
size, and therefore FRA expects a final rule will have preemptive
effect on those State laws that are Statewide in character and do not
address narrow, local safety hazards.'' \58\ The NPRM then requested
comments on the issue of preemption.
---------------------------------------------------------------------------
\55\ 87 FR at 45568-70 (citing Transp. Div. of the Int'l Ass'n
of Sheet Metal, Air, Rail & Transp. Workers v. FRA, 988 F.3d 1170
(9th Cir. 2021).
\56\ 87 FR at 45567 and 49 U.S.C. 20103 (citing, in relevant
part, that the Secretary ``as necessary, shall prescribe regulations
and issue orders for every area of railroad safety supplementing
laws and regulations in effect on October 16, 1970'').
\57\ 87 FR at 45570-71 (citing the statutory preemption
provisions in 49 U.S.C. 20106 that mandate that laws, regulations,
and orders ``related to railroad safety'' be nationally uniform, and
that a Federal regulation or order covers the subject matter of a
State law where ``the [F]ederal regulations substantially subsume
the subject matter of the relevant [S]tate law'').
\58\ 87 FR at 45571. As noted below, there is a narrow exception
to the preemption provisions that allows non-Federal regulation of
``essentially local'' safety hazards. 49 U.S.C. 20106(a)(2).
---------------------------------------------------------------------------
The California Public Utilities Commission (CPUC) commented that
the final rule should reflect or exceed ``the strongest state laws that
currently exist.'' \59\ For that reason, CPUC is opposed to the NPRM to
the extent it could undermine California's law which has a more
stringent two-person crew mandate than FRA's proposed rule with
exemptions. CPUC requested that FRA ``provide a stronger role for State
agencies, such as [CPUC, and suggested that] FRA could require a
railroad to seek a [S]tate agency's concurrence prior to applying for
an exemption.'' \60\ CPUC commented that because ``a [S]tate will have
unique information regarding specific hazards or environmental concerns
within [the State's] borders . . . [a] petitioning railroad should
solicit the [S]tate agency's input . . . and the petitioning railroad
should include [that information] in its petition to the FRA . . . .''
\61\ CPUC also requested that FRA ``establish a clearly defined role
for [S]tate agencies to provide input and the ability to revoke [an
exemption] if safety issues arise that make the exemption untenable.''
\62\
---------------------------------------------------------------------------
\59\ FRA-2021-0032-12258 at 2. CPUC's comment did not
distinguish between exemptions and one-person train crew operations
proposed for a special approval process, calling the portions of the
NPRM that would allow for fewer than two train crewmembers an
``exemption process.''
\60\ Id.
\61\ Id.
\62\ Id. at 3.
---------------------------------------------------------------------------
A one-page letter signed by 19 senators from the Washington State
Legislature commented that Washington has a law regulating train crew
size and urged FRA not to preempt train crew size laws already passed
by States when those laws meet or exceed Federal crew size
standards.\63\ Similarly, the Washington State Legislative Board of the
Transportation Division of the International Association of Sheet
Metal, Air, Rail and Transportation Workers (SMART-TD) commented that
``while [it] strongly support[s] FRA's adopting a national minimum
train crew size rule [it] oppose[s] any regulatory language that would
preempt [S]tate laws and regulations that are equal to or more
stringent than a [F]ederal'' requirement.\64\
---------------------------------------------------------------------------
\63\ FRA-2021-0032-12202.
\64\ FRA-2021-0032-12917 at 1. The State of Washington's
Utilities and Transportation Commission also commented in strong
support of the NPRM, citing the importance to protect the public and
the environment from potential disaster involving hazardous train
derailments during a period in which railroads are using longer
trains, without mentioning preemption of Washington State's laws.
FRA-2021-0032-12746.
---------------------------------------------------------------------------
Many individuals and labor organizations commented that they
supported the NPRM but wanted FRA to consider a way to avoid preempting
State laws that have more stringent requirements. For example, the
Transportation Trades Department, AFL-CIO (TTD) would like FRA's
regulation to establish minimum safety requirements but not preempt
States from setting more stringent requirements.\65\ SMART-TD's Kansas
State Legislative Board, however, supported eliminating the existing
patchwork of State laws regarding crew size and creating a nationwide
standard.\66\
---------------------------------------------------------------------------
\65\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
\66\ FRA-2021-0032-9397.
---------------------------------------------------------------------------
A comment in support of FRA's preemption position came from 54
Members of the U.S. House of Representatives, recognizing that the
State laws mandating minimum crew size requirements have been
overturned by courts finding that the Federal government has
jurisdiction over this subject matter.\67\ For this reason, these U.S.
House Members commented that it is FRA's responsibility to address this
safety issue, calling it urgent because of the drastic changes in the
freight rail industry over the last several years.'' \68\
---------------------------------------------------------------------------
\67\ FRA-2021-0032-12809 (a duplicate comment was filed at FRA-
2021-0032-12971).
\68\ Id. at 2.
---------------------------------------------------------------------------
Norfolk Southern Railway Company (NS) commented that while it
agrees that a national rule addressing crew size would be consistent
with Congress' express goal that Federal laws and regulations relating
to railroad safety create national uniformity, it opposes this rule for
a variety of reasons,
[[Page 25061]]
including that the NPRM would be ``burdensome'' and that FRA neglected
to mention in the NPRM that some States' laws have been
invalidated.\69\ NS stated that ``[p]reemption cannot justify FRA's
imposition of this particular rule'' because of the harm the NPRM could
cause the rail industry.\70\
---------------------------------------------------------------------------
\69\ FRA-2021-0032-13045.
\70\ Id. at 6.
---------------------------------------------------------------------------
SMART-TD's Illinois Legislative Board (SMART-TD ILB) commented in
support of the NPRM and provided a supporting letter from Illinois
Governor J.B. Pritzker.\71\ The comment stated that a court had vacated
an Illinois law requiring most freight trains operating in Illinois to
have an operating crew of at least two individuals \72\ and that SMART-
TD ILB and Governor Pritzker support the NPRM as an alternative to the
preempted Illinois law.
---------------------------------------------------------------------------
\71\ FRA-2021-0032-10530.
\72\ Id. at 2 (referring to, but not citing, Ind. Rail Rd. Co.
v. Ill. Commerce Comm'n, 576 F. Supp. 3d 571 (N.D. Ill. 2021).
---------------------------------------------------------------------------
FRA's Response
As explained in the NPRM, FRA recognizes that, if the issue of crew
size safety is left to be governed by a patchwork of State laws,
logistically it may become impossible for a railroad to even consider
operations with fewer than two crewmembers. Thus, this rulemaking is
intended to set forth a nationwide rule for crew size safety,
especially operations with a one-person train crew, based on FRA's
expertise and experience in regulating safety and risks in rail
operations. While courts may find that some of those State laws are
preempted even without this rule, other State laws may not be
challenged and found preempted, leaving an untenable inconsistency
governing crew size. This final rule meets Congress' mandate that the
laws, regulations, and orders related to railroad safety be nationally
uniform.
While FRA intends this final rule to create a nationwide standard
and anticipates that it will preempt State laws covering the same
subject matter, FRA clarified in the NPRM that FRA's statutory
preemption provision includes a ``narrow exception'' \73\ to FRA's
broad authority to preempt State laws. This narrow exception allows
non-Federal regulation of ``essentially local'' safety hazards.\74\ An
``essentially local safety hazard'' is ``one which is not adequately
encompassed within national uniform standards.'' \75\ As noted in the
NPRM, some State laws governing crew size, such as those in California,
Nevada, and Washington, do not, in FRA's view, address an ``essentially
local'' hazard because they would apply statewide.\76\ In support of
this view, FRA explained in the NPRM that legislative history and
subsequent judicial decisions indicate the narrow exception is intended
to allow States to respond to local situations not capable of being
adequately addressed in uniform national standards, but local safety
hazards cannot be Statewide.\77\
---------------------------------------------------------------------------
\73\ 87 FR at 45570-71 (citing Duluth, Winnipeg & Pac. Ry. Co.
v. City of Orr, 529 F.3d 794, 796 (8th Cir. 2008) in which the court
found 49 U.S.C. 20106(a) ``creates a narrow exception to preemption
through its savings clause'').
\74\ 49 U.S.C. 20106(a)(2).
\75\ Union Pacific R. Co. v. California Pub. Utils. Comm'n, 346
F.3d 851, 860 (9th Cir. 2003).
\76\ 49 U.S.C. 20106(a)(2); H.R. Rep. No. 91-1194 (1970),
reprinted in 1970 U.S.C.C.A.N. 4104, 4117 (``these local hazards
would not be statewide in character''); see also Norfolk & Western
Ry. Co. v. Public Utilities Comm'n of Ohio, 926 F.2d 567, 571 (6th
Cir. 1991) and National Ass'n of Regulatory Util. Comm'rs v.
Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976) (both holding that the
local hazard exception cannot be applied to uphold the application
of a statewide rule).
\77\ 87 FR at 45571 (citing H.R. Rep. No. 91-1194 (1970),
reprinted in 1970 U.S.C.C.A.N. 4104, 4117).
---------------------------------------------------------------------------
In response to CPUC and other similar commenters who requested that
FRA provide States with a clear role in FRA's exemption provision, this
final rule provides that the public may comment on any special approval
petition as FRA proposed in the NPRM. FRA encourages States and their
regulatory agencies to comment on requests for one-crew operations and
provide any safety information or data they believe would be useful to
FRA in deciding whether to approve a special approval petition for a
one-person train crew operation.
As an alternative to issuing a narrowly tailored State law to
address any essentially local safety hazards, a State could bring any
safety concerns about a particular rail operation to FRA's attention
for discussion or possible investigation. For example, a State agency
that participates in investigative and surveillance activities with FRA
under 49 CFR part 212 can work with FRA to enforce this final rule.\78\
---------------------------------------------------------------------------
\78\ Part 212 establishes standards and procedures for State
participation in investigative and surveillance activities under the
Federal railroad safety laws and regulations.
---------------------------------------------------------------------------
FRA disagrees with NS's comment that FRA is relying on preemption
as a justification for the final rule. As explained above, FRA is
issuing this final rule to ensure that trains are adequately staffed
for their intended operation and railroads have appropriate safeguards
in place for safe train operations, especially when using one-person
train crews. Moreover, this final rule meets Congress' requirement that
the laws, regulations, and orders related to railroad safety be
nationally uniform.\79\ Thus, FRA is not basing its justification for
this final rule on preemption, but rather is noting that the national,
uniform standard provided in this rule is expected to preempt State
laws governing crew size.
---------------------------------------------------------------------------
\79\ 49 U.S.C. 20106.
---------------------------------------------------------------------------
C. Comments Supporting the NPRM
In the NPRM, FRA explained how the Ninth Circuit's decision to
vacate and remand the 2019 withdrawal left FRA with some choices on a
path forward, and FRA exercised its discretion to choose, through this
rulemaking, to reconsider numerous safety issues that may be associated
with or impacted by one-person train crew operations.\80\ For instance,
FRA revisited the lack of a Federal requirement for a systematic post-
accident protocol for trains hauling freight.\81\ The NPRM also raised
several other potential safety issues to consider, including the
context that many of the Federal rail safety regulations were written
with the expectation that each train would have multiple crewmembers,
the safety findings drawn from research on the cognitive and
collaborative demands placed on train crewmembers while operating a
train, and the ability of railroads to respond to a one-person train
crewmember who may become incapacitated.\82\
---------------------------------------------------------------------------
\80\ 87 FR at 45571-76.
\81\ 87 FR 45571.
\82\ See e.g., 49 CFR 218.99 (requiring point protection for
shoving or pushing moves; 218.103-218.107 (operational requirements
for hand-operated switches) and generally, 49 CFR part 239
(Passenger Train Emergency Preparedness requirements).
---------------------------------------------------------------------------
Many commenters supported FRA's decision in the NPRM to reconsider
the safety issues and propose minimum requirements for the size of
train crews depending on the type of operation. These commenters are
concerned, among other things, about the operational safety of a train
operated by a one-person crew, the operational safeguards to protect
that crewmember in various situations, and the impact of one-person
train crew operations that travel through their communities as
evidenced by the numerous comments received raising those concerns.
1. Labor Organizations
The Brotherhood of Locomotive Engineers and Trainmen (BLET) and
SMART-TD filed a joint comment stating that their unions, which
represent the vast majority of operating train crew workers across the
nation, support the implementation of a two-person crew rule in the
interest of public safety and request that the final
[[Page 25062]]
rule ``mandate that two-person crews are the standard as they have
proven to be the safest and most efficient way to operate.'' \83\ In
addition, the International Brotherhood of Teamsters, which includes
BLET as part of the Teamsters Rail Conference, commented that it
supports FRA's efforts to promulgate the NPRM and endorsed BLET's
comment.\84\ The jointly filed written comment, and BLET and SMART-TD's
oral testimony at FRA's public hearing, detailed their members'
interest in this safety rulemaking. For example, BLET and SMART-TD are
concerned with the multiple steps a one-person train crew approaching a
roadway work zone would need to perform alone and the risks to rail
employees working on or near the track if that single crewmember made a
mistake. The unions' jointly filed comment also noted how many
railroads embraced greater electronic device use, such as cellphone
use, as a pivotal component of their plans to reduce crew size even
though electronic device use is currently strictly regulated because of
those devices' potential for distraction.\85\ BLET and SMART-TD also
described how trains are routinely slowed by unplanned events that
require someone other than the locomotive engineer to troubleshoot the
problem before the train can continue and how a conductor and a
locomotive engineer work as a team during any necessary
troubleshooting. Moreover, the labor organizations' jointly filed
comment noted that a two-person train crew provides a backstop to human
error, which is still useful with a positive train control (PTC)
system, and that, even when there is a low incidence of rail accidents,
the consequence of an accident can be high and thereby justify an
additional fail-safe measure.
---------------------------------------------------------------------------
\83\ FRA-2021-0032-13038 at 1.
\84\ FRA-2021-0032-13050.
\85\ See 49 CFR part 220, subpart C (specifying its purpose ``is
to reduce safety risks resulting from railroad operating employees
being distracted by the inappropriate use of electronic devices,
such as mobile telephones (cell phones or cellular phones) and
laptop computers'').
---------------------------------------------------------------------------
BLET and SMART-TD commented that their members who have experienced
PTC implementation first-hand, expressed that they want PTC as a tool
but recognize that PTC was not designed to do the job of a crewmember
supplementing the engineer. Further, the unions jointly commented that
PTC ``has introduced new complexities and levels of attention capture
not seen prior to the implementation of PTC and has emphasized the need
for a conductor on board due to the added level of distraction PTC has
imposed upon the engineer.'' \86\ BLET and SMART-TD commented that PTC
and other technologies often involve after-market products bolted on,
rather than integrated into, existing equipment which makes the
locomotive cab feel crowded with technology and, in turn, can
complicate the jobs of the train crewmembers. BLET and SMART-TD also
commented that automated fuel-saving software programs currently are
programmed without regard to bad weather or less-than-optimal
conditions, potentially requiring a locomotive engineer to intervene
manually. BLET and SMART-TD also commented that the industry's
increased reliance on distributed power operations (i.e., where an
engineer must control two or more locomotives independently with the
aid of computers) means that the locomotive engineer must direct
significant attention to computer screens; in their view, the NPRM did
not adequately consider the safety considerations of using a one-person
train crew with a distributed power operation, which ``takes much of
the engineer's attention away from the view forward.'' \87\
---------------------------------------------------------------------------
\86\ FRA-2021-0032-13038 at 2.
\87\ FRA-2021-0032-13038 at 6.
---------------------------------------------------------------------------
During the public hearing, BLET's National Legislative
Representative, who described himself as a former freight locomotive
engineer on a Class I railroad for 18 years, testified in overall
support of the NPRM and included comments regarding BLET's concerns
with some of the proposed exceptions to the two-person train crew
mandate. BLET testified that a locomotive engineer is not a mobile
member of the train crew because that person is responsible for the
physical manipulation of the controls of the locomotive and the
monitoring of on-board systems. BLET stated that for an engineer to
leave the locomotive cab unattended as a one-person train crew, the
engineer must complete a time-consuming series of steps that includes
disabling the locomotive's controls, setting the train's air brakes,
securing the locomotive and train with hand brakes, and following rules
or procedures that confirm the train is properly secured. In explaining
how PTC has made a train crew's job more difficult, BLET testified that
PTC has introduced new complexities and can reduce a crewmember's
situational awareness such as when a dispatcher references a mandatory
directive over the radio and a locomotive engineer must toggle between
display screens to understand the directive the dispatcher is
referencing. BLET raised concern that railroads are reducing crew size
to increase corporate profits while ignoring rules or cutting corners
on safety. BLET's testimony also reiterated concern in BLET and SMART-
TD's jointly filed written comment that FRA reconsider some of the
proposed exceptions to a two-crewmember mandate as those operations may
not as safe or simple as FRA suggested in the NPRM.
During FRA's public hearing, SMART-TD's President testified about
the general dangers of railroad work and that safety cannot be expected
to improve by reducing the number of train crewmembers when the
workforce is already depleted and overworked. SMART-TD's President
testified that ``the carriers regularly argue that there is no data to
support a two-person crew being safer than a one-person crew . . . [and
t]he irony . . . is that likewise there is no data to support that a
one-person or autonomous operation is any safer than that of a two-
person crew in freight operations.'' SMART-TD's President also
described an incident when he was a locomotive engineer on a coal train
and his conductor warned him of a young child on the track. SMART-TD's
President testified that he blew the horn and rang the bell, but the
boy did not move, and he credited the conductor for saving the child's
life because the conductor ran out on the nose of the engine and waved
in a manner that led the child to step out of the way. SMART-TD's
President concluded that his experience demonstrates the effectiveness
of two crewmembers working as a team as it is important to have the
conductor make track observations when a locomotive engineer may be
distracted by monitoring the controls or interacting with a computer
screen. SMART-TD testified that, in addition to a backup observation
role, a conductor can contribute knowledge and decision-making
judgment, especially when responding to non-routine situations. SMART-
TD testified about PTC's limitations and how a conductor can identify
washouts, rockslides, fires, vehicles, and pedestrians, but PTC cannot.
SMART-TD described how a one-person crew would be unlikely to assist
anyone injured in a highway-rail grade crossing collision nor would the
one-person crew be able to assist first responders as easily as a
conductor or quickly assess damage from a derailment.
During FRA's public hearing, a member of SMART-TD who described
himself as a conductor with 18 years of experience stated that the
proposed crew size safety requirements are
[[Page 25063]]
important because the workforce is already strained and the recent
doubling of one-and-a-half-mile-long trains would make a complex job
unsafe with a one-person train crew.\88\ This SMART-TD member described
the importance of multi-person crews being able to mentor one another
and provide backup. Specifically, he explained that a one-person crew
will be physically and psychologically challenged because of the jobs'
many demands, such as the need to look at three different computer
screens in the locomotive cab while continuing to monitor conditions
ahead, and due to working alone without human interaction or even the
freedom to listen to music. He also stated that a person working alone
will lose a layer of safety that is not fully replaced by PTC. Further,
this SMART-TD member testified about an incident in which he was a
train crewmember and the PTC system allowed his crew to operate the
train with PTC enabled even though nobody entered the number of axles
in the train, a potential safety concern in the way the PTC system
would govern the train. This SMART-TD member also stated that, as a
former U.S. Navy combat medic, he was trained to spot medical concerns
and, in his rail work experience, it has been necessary for him to have
fellow crewmembers removed for medical emergencies, illnesses, and
fatigue. Thus, he noted that one-person train crews, who do not remove
themselves from train operations when they are tired or sick, will pose
a greater safety risk than two-person train crews where the second
crewmember can mitigate the risk of a sick or tired crewmember.
---------------------------------------------------------------------------
\88\ This SMART-TD witness at the hearing is also the Secretary
of SMART-TD's Maryland State Legislative Board as identified in that
organization's comment. FRA-2021-0032-6937.
---------------------------------------------------------------------------
TTD commented that it consists of 37 affiliated unions representing
the totality of rail labor, including both passenger and freight rail
workers, and specifically the locomotive engineer and conductor
employees who will be most impacted by the NPRM.\89\ TTD's President
also presented oral testimony at FRA's public hearing. Overall, TTD
commented that it supported the NPRM and urged FRA to adopt more
stringent requirements than proposed by eliminating or changing the
option for a railroad to use ``an alterative risk assessment process in
lieu of the proposed risk assessment'' and by requiring that a second
crewmember be a certified conductor.\90\ TTD stated that FRA's NPRM
recognized the ``fundamental truths [that] . . . crew size is directly
correlated to the safe operation of trains [and that] . . . reducing
the number of [crewmembers] creates substantial safety risks that need
to be addressed . . . [because the] crewmembers have complementary[,]
but distinct[,] responsibilities.'' \91\ TTD commented that a Class I
railroad's video shown at the public hearing to demonstrate operations
using ground-based conductors described a scenario occurring ``under
ideal circumstances in terms of [a ground-based conductor] being able
to locate and access [a] site without any difficulty [as a person]
arriving from off-site is likely going to be severely delayed.'' \92\
---------------------------------------------------------------------------
\89\ FRA-2021-0032-12306 and FRA-2021-0032-13049.
\90\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 2.
\91\ FRA-2021-0032-12306 and FRA-2021-0032-13049 at 5.
\92\ FRA-2021-0032-13049 at 13.
---------------------------------------------------------------------------
TTD also highlighted a comment from its affiliate, the
International Association of Fire Fighters, that first responders on-
scene rely on train crews to provide critical cargo information and
services such as separating train cars, and with only one crewmember
there is no redundancy and a much higher risk of first responders not
receiving crucial information.\93\
---------------------------------------------------------------------------
\93\ FRA-2021-0032-5247.
---------------------------------------------------------------------------
Labor organizations, such as BLET, SMART-TD, and TTD, requested
that FRA reconsider the remote control operations exception and asked
whether additional regulations of remote control operations are needed
to allow remote control operators to safely operate over any distance.
These commenters do not seek FRA to regulate remote control operations
through this rulemaking, as they viewed the proposed exception as
allowing such operations without establishing other necessary safety
requirements. These labor organization commenters took the position
that FRA should, outside of this rulemaking, take action to review all
remote control operation related accidents, regardless of whether the
accidents occurred during train or switching operations, and then
consider whether to seek input from FRA's Federal advisory committee,
the Railroad Safety Advisory Committee (RSAC), or otherwise initiate a
rulemaking covering comprehensive safety requirements for remote
control operations.
The Brotherhood of Maintenance of Way Employes Division (BMWED),
which represents employees who inspect, install, construct, repair, and
maintain railroad track, roadbed, and related right-of-way
infrastructure on all Class I railroads, advocated for a locomotive
engineer and a conductor two-person train crew for every freight train
operating over the general railroad system.\94\ BMWED's comment stated
that two-person crews provide necessary checks and balances for the
operation of the train and its securement at terminal points, yards,
and sidings.
---------------------------------------------------------------------------
\94\ FRA-2021-0032-12213.
---------------------------------------------------------------------------
The American Train Dispatchers Association (ATDA) commented in
support of the proposed rule, emphasizing the safety need for a
dispatcher to immediately communicate instructions or orders to a train
en route.\95\ ATDA is concerned that a one-person train crew might not
always be able to receive communications, thereby creating a
substantial hazard to rail employees and the public. Also, ATDA
commented that railroad safety is improved by the regular crew
communications to dispatchers and that it will be unrealistic for a
one-person crew to accomplish all the crew's regular duties and
continue to report other safety information, including the location of
young children near the tracks, visible track- and structure-related
defects or damage, and potential problems on trains passed such as
shifted loads and equipment dragging.\96\
---------------------------------------------------------------------------
\95\ FRA-2021-0032-13016.
\96\ Id. at 3.
---------------------------------------------------------------------------
The Transport Workers Union of America (TWU), which represents a
variety of rail employees, including those who inspect and repair
equipment and track at several Class I railroads and some of the
northeast's largest regional rail systems, commented in support of the
rule, emphasizing the safety need for a second crewmember to assist
carmen who are dispatched when a train develops mechanical problems en
route.\97\ TWU explained that a single carman is often dispatched to
make such a mechanical repair and, on these occasions for safety
reasons, it is necessary for a conductor to assist the carman in making
the inspection and necessary repairs.
---------------------------------------------------------------------------
\97\ FRA-2021-0032-12281.
---------------------------------------------------------------------------
In addition, BLET Division 446 from Belen, New Mexico,\98\
described how its members operate trains over remote landscapes that
are not readily accessible by motor vehicle, and thus indicated that a
two-person train crew is vital to survival in medical or other
emergency situations.
---------------------------------------------------------------------------
\98\ FRA-2021-0032-8741.
---------------------------------------------------------------------------
Further, the California Labor Federation (CLF), AFL-CIO \99\ noted
a two-person train crew is better able to monitor events both inside
and outside the locomotive cab than can a single crewmember, thereby
providing greater
[[Page 25064]]
situational awareness. CLF also explained how a second crewmember can
fill in knowledge gaps and keep the locomotive engineer alert when that
engineer is fatigued.\100\
---------------------------------------------------------------------------
\99\ FRA-2021-0032-10712.
\100\ A similar comment was received from the Oklahoma AFL-CIO.
FRA-2021-0032-10355.
---------------------------------------------------------------------------
2. Individual Commenters
A short form letter was used in approximately 3,658 comments to
express opposition to one-person crews, asserting that ``[h]aving
multiple crewmembers working at all times protects against medical
emergencies and derailments.'' \101\ The form letter also suggested an
economic argument that railroads were motivated to reduce train crew
size by ``Wall Street greed'' and that one-person train crews could be
connected to future supply chain disruptions.
---------------------------------------------------------------------------
\101\ FRA-2021-0032-2764.
---------------------------------------------------------------------------
Further, approximately 469 commenters submitted a short form letter
which stated that two pairs of eyes are better than one and compared a
train crew to an airline crew, but suggested rail posed greater risks
because freight trains transport hazardous or flammable materials and
spent nuclear rods.\102\
---------------------------------------------------------------------------
\102\ FRA-2021-0032-10974 is a representative example of this
group of comments.
---------------------------------------------------------------------------
Another form letter sent by approximately 29 individual commenters
stated their shared concern that a lone crewmember would not be able to
address train malfunctions or grade crossing incidents or assist
emergency response personnel as quickly as a two-person crew could,
leaving their community in harm's way.\103\ For this reason, these
commenters supported FRA's proposal to establish minimum requirements
for the size of crews operating trains.
---------------------------------------------------------------------------
\103\ FRA-2021-0032-11120.
---------------------------------------------------------------------------
In a similar example of a form letter supporting a two-person crew
mandate, FRA received nine identical comments mailed and docketed
together as a single comment from individuals expressing concern that a
lone crewmember would not be able to address train malfunctions or
grade crossing incidents or assist emergency response personnel as
quickly as a two-person crew could.\104\
---------------------------------------------------------------------------
\104\ FRA-2021-0032-10465.
---------------------------------------------------------------------------
During FRA's public hearing, a commenter identified herself as a
conductor with ten years of experience for the Union Pacific Railroad
Company (UP).\105\ The commenter stated that she is concerned with an
overreliance on technology that does not always work as intended. She
also disagreed with UP's testimony that having a conductor in a truck
would be a faster way of alleviating a mechanical repair to a train
versus a conductor who travels with the train.
---------------------------------------------------------------------------
\105\ FRA-2021-0032-13184.
---------------------------------------------------------------------------
Numerous individual commenters provided first-hand accounts of
close calls and lives saved by the action of two crewmembers working as
a team. These commenters largely provided anecdotal information
supporting why they thought trains staffed with fewer than two persons
created unsafe conditions. Individual commenters sometimes used a form
letter provided by an organizing association or union but added their
personalized statement to make it unique. Because there are so many of
these types of comments in the record, the following examples are
provided as a sampling and not an exhaustive summary.
A short form letter comment supporting a two-person train crew
mandate was used in approximately 2,574 comments and was written from
the perspective of rail employees who are currently train
crewmembers.\106\ The form letter captured the person's support for FRA
revisiting research described in the NPRM that scrutinizes the
cognitive and collaborative demands placed on each crewmember, and how
multiple crewmembers can work together as an effective, safe team. This
form letter also raised concerns with technology and other job-related
stressors and concluded that having a work partner helps get the job
done.
---------------------------------------------------------------------------
\106\ FRA-2021-0032-8789.
---------------------------------------------------------------------------
A commenter who identified himself as having 22 years of experience
as a conductor and several leadership roles in SMART-TD supported the
NPRM, as he viewed a two-person train crew requirement as vital to safe
freight operations largely because of the hazards related to trains
hauling hazardous materials.\107\ The commenter pointed to trends he
has observed, stating that the length and weight of freight trains are
increasing, thereby impacting the distance needed to stop the train in
case of emergency and increasing the probability of an accident/
incident. The commenter also stated that a derailment or accident
involving a long train hauling mainly hazardous materials could pose a
more widespread danger zone than a shorter train. His stated concerns
included protecting communities and schools located near railroad
tracks. The commenter also stated that communities impacted by stopped
trains blocking crossings would be worse off because it would take
significantly longer for a railroad to manually separate the train and
unblock the crossing if a conductor is not on the train to assist.
Further, the commenter raised the issue of how two crewmembers keep
each other alert and on task, and that having an accountability partner
is the number one tool used by crews to combat fatigue.
---------------------------------------------------------------------------
\107\ FRA-2021-0032-9893.
---------------------------------------------------------------------------
An individual commented that he was a conductor on a train that
struck a delivery truck at a highway-rail grade crossing.\108\ The
commenter explained that while the locomotive engineer began the
process of stopping the train, he immediately called the dispatcher to
arrange for emergency first responders. According to the commenter's
description, he was off the train before it stopped so that he could
run back to the crossing and help a passerby pull the unconscious truck
driver out and away from the truck before the truck was engulfed in
flames. He was then available to assist first responders, to split or
secure the train or answer any questions as needed. The commenter
contrasted his accident description with how he believes the incident
would have unfolded if the train had been operated by a one-person
crew. Under the commenter's theoretical scenario, the locomotive
engineer would make an emergency brake application, dial the emergency
number, and provide the milepost location. The engineer would not be
able to provide the dispatcher with the DOT grade crossing number until
the train was stopped and the number could be safely found in reference
materials. The commenter explained that with a one-person crew the
dispatcher would call for emergency first responders, but the engineer
could not leave the train to assist the driver because the engineer
would have a duty to secure an unattended train with hand brakes first.
According to the commenter, without a second crewmember, other factors
would determine whether the driver would have been rescued in time, and
the one-person crewmember would feel helpless as the crewmember would
be required to remain on the train unable to help anyone injured or
readily assist first responders. The commenter also stated that FRA's
proposed rule was not stringent enough in that two-person train crews
are necessary for all train movements to ensure safety.
---------------------------------------------------------------------------
\108\ FRA-2021-0032-12240.
---------------------------------------------------------------------------
A commenter described a situation when he was part of a freight
train crew that had an emergency brake application in a town.\109\
Because the train was blocking the town's highway-rail grade crossings
for at least 15 minutes and
[[Page 25065]]
preventing an ambulance from crossing the tracks, a dispatcher
requested that the crew cut a crossing to allow the ambulance by. The
commenter is concerned that without a second crewmember, situations
like this would occur, and it is unclear how long it would take a
railroad to open a crossing for local emergency responders.
---------------------------------------------------------------------------
\109\ FRA-2021-0032-0970.
---------------------------------------------------------------------------
A commenter expressed several safety concerns as a freight train
conductor for over 19 years.\110\ For instance, the commenter expressed
frustration that railroads do not keep track of incidents in which
trains with two crewmembers saved lives or prevented accidents. He
explained that he has crewed trains involved in accidents at rail-
highway grade crossings and derailments of cars transporting hazardous
materials, and how two crewmembers can more easily prevent harm to the
public by taking quick action or relaying information to emergency
responders. He also expressed concerns with a one-person train crew
suffering from fatigue.
---------------------------------------------------------------------------
\110\ FRA-2021-0032-0594.
---------------------------------------------------------------------------
A commenter described that he is both a locomotive engineer and
conductor who has experienced firsthand why it is imperative to public
safety that each train have a minimum of two crewmembers.\111\ The
commenter described an incident in which the train he was conducting
crashed into a car at a highway-rail grade crossing during winter. The
commenter explained that, with two crewmembers, he was free to help the
driver of the motor vehicle that was in a ditch, while the engineer
stayed with the locomotive to coordinate with local emergency
responders, monitor the air brake system, and perform other duties
necessary to maintain the safety of rail operations.
---------------------------------------------------------------------------
\111\ FRA-2021-0032-0226.
---------------------------------------------------------------------------
An individual commented that he has over twenty years experience as
a conductor and engineer for a Class I freight railroad and raised many
safety issues.\112\ For instance, the commenter expressed concern that
a one-person train crew that significantly relies on PTC and other
technologies to safeguard and operate the train will encounter
difficulties when one or more technologies fail or are unavailable as
the person's ability to operate in manual mode could have deteriorated
from disuse and that there are examples of this problem in the airline
industry. The commenter also made a case for redundancy, noting that in
the motor vehicle context, Federal law mandates cars be manufactured
with seat belts and States enforce laws governing the use of seat belts
even though air bags could have arguably replaced the seat belt. The
commenter pointed out that, in his experience, railroads have largely
held both crewmembers responsible for the safe operation of the train
and compliance with operating rules and practices because doing so
enhances safety.
---------------------------------------------------------------------------
\112\ FRA-2021-0032-12808.
---------------------------------------------------------------------------
Additionally, this same commenter stated that he disagreed with
railroad commenters who suggested a conductor in a truck could
substitute for a conductor on the train. He commented that he is
familiar with a territory that would not be accessible by truck and,
therefore, a conductor in a truck would be delayed getting to and
fixing a problem involving the train. In addition, the commenter stated
that a locomotive engineer can often determine the approximate location
of a broken knuckle and a conductor can replace it with a new knuckle
as a relatively routine repair. He stated that in his short experience,
he has fixed three broken knuckles and took 30 to 45 minutes to make a
replacement. He also described an incident where he changed a knuckle
even though the railroad sent a carman out to do it, and he was done
with the repair before the carman arrived about 90 minutes later.
This same commenter also described a situation with a one-person
train that operates into a mile-long tunnel on the territory he works.
According to the commenter, because the tunnel does not have any
ventilation, if the train has any issues where it might have to stop in
the tunnel, the crew is instructed to cut the crew's locomotives from
the train and get out of the tunnel before the tunnel fills with carbon
monoxide. During this tunnel operation, the commenter theorized that it
would be impossible for a one-person crew to create enough pin slack to
separate the locomotives from the rest of the train to escape the
tunnel by operating the locomotives.
During FRA's public hearing, a commenter identified herself as a
BLET National Auxiliary, Second Vice President, and Legislative
Representative from Lakeside, Nebraska.\113\ The commenter also
identified herself as the concerned wife of a BNSF Railway Company
(BNSF) locomotive engineer whom she does not want to operate trains
alone, noting in particular a past medical event. She also expressed
concern about a one-person train crewmember suffering from fatigue,
isolation, and depression. Further, the commenter was concerned that
training programs for one-person train crews will be inadequate, noting
that when railroads removed the brakeman position to reduce train crew
size to two crewmembers, the quality of the training was reduced to
accommodate the large number of brakemen who were trained for conductor
positions.
---------------------------------------------------------------------------
\113\ FRA-2021-0032-13184.
---------------------------------------------------------------------------
During FRA's public hearing, another commenter stated he was a
locomotive engineer for UP for almost 20 years, and the idea of a one-
person train crew is unsafe because it would take away half of the
decision-making team.\114\ The commenter described how a two-person
crew goes through their paperwork together, discussing slow orders,
train makeup, and temporary restrictions. He said that organizing the
crew's paperwork and planning the shift's operation will not always be
easy because, with so many documents, rules, and temporary rules, one
person could overlook a safety concern and make a mistake the other
crewmember could have otherwise caught. The commenter also raised
concern that, although a one-person train crew may be able to perform
certain tests and inspections alone or with a utility employee, a
conductor assigned to the train provides a valuable oversight role, and
``it's just more cohesive to have that second person [remain with the
train] for the entire trip.'' \115\ Further, the commenter stated that
toward the end of a tour of duty, when a train approaches a crew
change, the crew has many responsibilities that are time-sensitive and
would be difficult for a one-person crewmember to complete as quickly
or efficiently.
---------------------------------------------------------------------------
\114\ FRA-2021-0032-13184.
\115\ FRA-2021-0032-13184.
---------------------------------------------------------------------------
A commenter, who described herself as the spouse of a railroad
worker and a person with significant interest in the rulemaking largely
because of her many work experiences in first responder positions
including as a 911 dispatcher and working in an ambulance, fire truck,
and police car stated that she has spoken publicly on the topic of
blocked crossings and her opposition to one-person train crews.\116\
The commenter stated that she has collected anonymous statements from
railroaders regarding their experiences, describing accidents and
possible scenarios that could cause delays or additional safety
concerns if railroads use one-person train crews, including concerns
about the limitations of PTC when traveling at restricted speed and
having to visually verify switches, and the limitations of global
positioning system software to detect which track the train will be
operating over and how a second crewmember
[[Page 25066]]
could provide backup in detecting if the train was lined to switch to
the wrong track. The commenter also echoed many other concerns raised
by individual commenters.
---------------------------------------------------------------------------
\116\ FRA-2021-0032-12819.
---------------------------------------------------------------------------
An individual commented in strong support of a national, minimum
two-person train crew requirement as a proactive safety
precaution.\117\ This individual stated that she is concerned about
public and environmental exposure to hazardous materials from accidents
and non-accidental spills and is especially concerned about a one-
person crew freight train transporting waste flowback from the fracking
process that may have both known and unknown hazards.
---------------------------------------------------------------------------
\117\ FRA-2021-0032-13111.
---------------------------------------------------------------------------
A commenter noted railroad rules that impose critical focus zones
(CFZ) in his comment in support of the NPRM.\118\ The commenter pointed
to the CFZ rule of the Canadian National Railway Company (CN), which he
stated was in effect even with PTC, thereby showing a need for a two-
person train crew even in PTC territory. The commenter stated that
removing CFZ operating requirements and a two-person crew would
certainly degrade safety given how a CFZ rule with a two-person crew
greatly improves visibility and safety during train movements.
---------------------------------------------------------------------------
\118\ FRA-2021-0032-12333. FRA notes that there are no Federal
requirements that a railroad establish operating rules or practices
for a CFZ but that some railroads voluntarily establish them in
certain territories to reduce distractions, especially for the
locomotive engineer. For example, a crewmember other than the
locomotive engineer may be required to make all radio communications
in the CFZ, and any crew communications are required to be limited
to duties related to the train's immediate operation.
---------------------------------------------------------------------------
3. Federal Congressional Commenters
One comment signed by 54 House members stated their strong support
for FRA's NPRM to enforce a minimum of two crewmembers in most
passenger and freight rail operations, as they viewed the rule as
necessary to ensure the safety of communities.\119\ This comment urged
FRA to act expeditiously in finalizing the strongest rule possible,
finding crew size a fundamental safety issue. These commenters noted
that commercial airlines and boats have at least two crewmembers, and
that technology such as PTC cannot replace the expertise and quick-
thinking nature of human beings acting together as a team to operate
trains and respond to unanticipated events. These 54 House members also
supported a two-person train crew mandate out of concern that ``some
freight railroads are operating trains that are extremely heavy and
miles-long, which impact safe handling, increase wear and tear, and
cause blocked crossings which in turn impede motorists' travel and
encourage dangerous pedestrian behavior.'' These commenters also stated
that ``railroads successfully sued in court to overturn . . . [S]tates'
laws'' mandating minimum crew size requirements, and courts found that
``the [F]ederal government has jurisdiction over crew size
requirements.'' This group of lawmakers also concluded that the public
needs ``the safety benefits and uniform protection that [a rule] on
minimum train crew size [safety] would provide.''
---------------------------------------------------------------------------
\119\ FRA-2021-0032-12809 (duplicate comment filed at FRA-2021-
0032-12971).
---------------------------------------------------------------------------
Two of these House members, Rep. Donald M. Payne, Jr. and Rep. Dina
Titus, also co-signed a second comment that expressed strong support
for the proposed rule, especially raising concerns with freight trains
that they note have grown in both length and weight, which adds to the
complexity of safe handling of those trains and contributes to greater
maintenance needs.\120\ This jointly filed comment also raised concerns
about anticipated delays in resolving train problems when there is only
one crewmember. These congressional members stated their concern that
local first responders are negatively impacted by a one-person train
crew because of delays in unblocking crossings. This comment echoed
FRA's description in the NPRM of the safety benefits that two
crewmembers can provide for both operating the train and responding to
any unanticipated events, including those that PTC was not designed to
prevent.
---------------------------------------------------------------------------
\120\ FRA-2021-0032-11185.
---------------------------------------------------------------------------
Another of these 54 House members, Sharice L. Davids, filed a
second comment to emphasize her support for the proposed rule and her
concern that having one person responsible for a massive train hauling
hazardous materials jeopardizes the safety of crews and the public at
large.\121\ Rep. Davids also commented that a national two-person crew
requirement is important to secure some of the nation's most critical
supply chain routes at a time when there is increased pressure on the
supply chain.
---------------------------------------------------------------------------
\121\ FRA-2021-0032-10917.
---------------------------------------------------------------------------
FRA received at least two individually filed comments from House
members who represent New Jersey districts and expressed support for
the proposed requirements in the NPRM. Rep. Jefferson Van Drew wrote
that he supported FRA's proposed rule because of his understanding that
``[r]ail transportation is safer when workers have a co-worker
available to watch their back and assist them with difficult or
dangerous tasks.'' \122\ Rep. Van Drew emphasized that the final rule
should also include passenger rail operations, and he urged FRA to
strengthen the requirements to ensure the safest environment for rail
workers. Similarly, Rep. Christopher Smith commented that he is
strongly supportive of all trains in New Jersey having at least two
crewmembers to ensure public safety and proper operation of critical
infrastructure.\123\ Rep. Smith stated that research indicates a two-
person train crew team would have a greater ability to notice and
correct errors or problem-solve during an emergency than would a one-
person train crew. He raised safety concerns with a one-person train
crew operating a long train that is transporting hazardous material
through densely populated areas and concluded that a two-person
requirement would best protect the public, preserve confidence in rail
transportation, and safeguard communities.
---------------------------------------------------------------------------
\122\ FRA-2021-0032-10347.
\123\ FRA-2021-0032-13188.
---------------------------------------------------------------------------
4. State and Local Governmental Commenters
Several State and local government officials and organizations
commented in support of the NPRM. For example, the National League of
Cities, a nonpartisan organization comprised of city, town, and village
leaders that are focused on improving the quality of life for their
constituents, commented that it believes the presence and training of
railroad crew is a matter of safety.\124\ This organization supported
the NPRM and stated the hazard of reduced crews undermines the safe and
efficient movement of trains and puts local first responders in unsafe
situations during rail incidents and accidents.
---------------------------------------------------------------------------
\124\ FRA-2021-0032-10696.
---------------------------------------------------------------------------
Michigan State Representative John Cherry commented that having a
second crewmember could be the difference between life and death for
the crew and the community.\125\ Representative Cherry's comment stated
a second crewmember is needed to help with situational awareness,
prevent fatigue, and relay critical information to emergency responders
if one crewmember is incapacitated. Similar comments were made by other
Michigan State Representatives including Alex Garza,\126\ David
LaGrand,\127\ and Padma
[[Page 25067]]
Kuppa,\128\ and Michigan State Senators Rosemary Bayer \129\ and Erika
Geiss.\130\
---------------------------------------------------------------------------
\125\ FRA-2021-0032-9545.
\126\ FRA-2021-0032-11021.
\127\ FRA-2021-0032-10993.
\128\ FRA-2021-0032-9906.
\129\ FRA-2021-0032-11005.
\130\ FRA-2021-0032-10585.
---------------------------------------------------------------------------
Dinah Sykes, Kansas Senate Minority Leader, commented in strong
support of the NPRM because it will establish a consistent, nationwide
standard that will reduce safety risks.\131\
---------------------------------------------------------------------------
\131\ FRA-2021-0032-9816.
---------------------------------------------------------------------------
Patrick Diegnan, Jr., New Jersey State Senator and Transportation
Chair, stated that he is concerned with the safety of both freight and
passenger trains that operate with great frequency through densely
populated areas.\132\ Senator Diegnan also attributed New Jersey's
positive safety record in recent years to trains operating with no
fewer than two crewmembers.
---------------------------------------------------------------------------
\132\ FRA-2021-0032-10588.
---------------------------------------------------------------------------
Aimee Winder Newton and Arlyn Bradshaw, two members of the Salt
Lake County Council in Salt Lake City, Utah, commented in support of
the NPRM because advancements in technology, such as PTC, improve
safety but are not a substitute for a train's on-board
crewmembers.\133\
---------------------------------------------------------------------------
\133\ FRA-2021-0032-10287.
---------------------------------------------------------------------------
Sonoma-Marin Area Rail Transit District (Sonoma-Marin), a State of
California publicly-owned, 95-mile railroad, commented that it
currently operates both passenger and freight rail service with two-
person train crews and hosts tourist railroads that operate with at
least a two-person train crew.\134\ Sonoma-Marin stated that it
supports FRA's efforts to create the safest operating environment for
communities, railroad personnel, and customers. Each of the railroad's
freight train crewmembers is qualified as both a locomotive engineer
and a conductor, and the same combination is used for passenger
operations, although periodically the second crewmember is only
qualified as a conductor. In passenger service, Sonoma-Marin uses a
PTC-equipped diesel multiple-unit fleet with two- and three-car
consists. Sonoma-Marin also stated that it currently uses a 24-hour
dispatch center and that crewmembers can directly communicate with one
another.
---------------------------------------------------------------------------
\134\ FRA-2021-0032-11211. Sonoma Marin's trade name is SMART.
---------------------------------------------------------------------------
Transportation for America, an advocacy organization for local,
regional, and State leaders, supported FRA's action to require at least
two crewmembers on most trains but expressed concern that the NPRM did
not go far enough. Transportation for America advocated for requiring
passenger operations to have three or four crewmembers and requiring a
two-person crew minimum for any of the proposed exceptions for
passenger and freight operations that operate over highway-rail grade
crossings.\135\
---------------------------------------------------------------------------
\135\ FRA-2021-0032-11186.
---------------------------------------------------------------------------
Citizens Acting for Rail Safety--Twin Cities (CARS-TC), a
community-based organization that is a regional chapter of Citizens
Acting for Rail Safety, commented that the size of train crews is a
public safety matter and opined that high hazard freight trains require
a four-person train crew.\136\
---------------------------------------------------------------------------
\136\ FRA-2021-0032-10731. Citizens Acting for Rail Safety
describes itself as a regional, non-partisan, grassroots advocacy
group that works with residents, legislators, and agency officials
to improve rail safety to benefit the health, safety, and security
of people, wildlife and the environment.
---------------------------------------------------------------------------
FRA's Response
The vast range of commenters supporting the NPRM, including
Federal, State, and local representatives, and organizations that
represent communities and employees, reflects the interest that the
public has in FRA regulating the safety issues regarding train crew
size. The comments supporting the NPRM largely corroborated FRA's
background in the NPRM describing the issues and why additional safety
requirements are necessary. In FRA's experience with regulating and
inspecting the rail industry, and as described by research and reports
of incidents in the NPRM, conductors and other crewmembers not assigned
to operate the locomotive or train play an active role in maintaining
the safe operation of the train and safeguarding their fellow employees
and the public. The comments supporting the NPRM help provide context
for the safety issues described in the NPRM concerning the significant
role of a conductor or second crewmember; the need to have technology
installed to stop a train when a one-person train crewmember becomes
incapacitated; and the need to establish minimum communication and
other requirements to mitigate hazards arising from both routine
operations and unplanned incidents such as derailments, accidents, and
mechanical breakdowns. The many anecdotal comments from individuals
supplement the research and reports as important source information for
the contributions of a two-person train crew team.\137\
---------------------------------------------------------------------------
\137\ Some labor organization commenters, such as TTD and SMART-
TD, highlighted FRA's Confidential Close Call Reporting System
(C3RS) as a program that might help to inform this rule but raised
concerns about the low participation rate among railroads. C3RS is a
voluntary program that provides employees of participating railroads
the opportunity to report unsafe events and conditions
confidentially. See <a href="https://railroads.dot.gov/railroad-safety/divisions/safety-partnerships/c3rs/confidential-close-call-reporting-system-c3rs">https://railroads.dot.gov/railroad-safety/divisions/safety-partnerships/c3rs/confidential-close-call-reporting-system-c3rs</a> (providing an overview, a list of
participating railroads, a description of stakeholders, and answers
to frequently asked questions including how railroads, labor
organizations, and FRA use data collected through the program).
While FRA agrees that C3RS could be informative, e.g., because the
program periodically issues confidential ``alert bulletins'' to
stakeholders and issues non-confidential information through
publicly available newsletters, FRA is unaware of any such alert or
newsletter that identified an issue that directly relates to the
safety of one-person train operations. Also, because FRA desires
greater rates of participation in the program than the approximately
25-30 current or committed railroad participants, none of which
include any Class I freight railroads, FRA is currently engaged in
efforts to promote voluntary participation in C3RS through the RSAC
process. See <a href="https://rsac.fra.dot.gov/tasks">https://rsac.fra.dot.gov/tasks</a>, RSAC Task 2022-03.
---------------------------------------------------------------------------
In addition, FRA agrees with these commenters that this rule is
needed because PTC is not a solution by itself. As of September 2023,
PTC technology is governing rail operations on approximately 58,787
route miles, representing approximately 42% of the rail network in the
United States. Although this is a significant achievement, it means
that most railroad route miles in the United States are currently not
governed by a PTC system. Even on PTC-governed main lines, railroads
experience unplanned outages and planned outages of their PTC systems.
For example, in March 2023, BNSF and the National Railroad Passenger
Corporation (Amtrak) experienced unplanned outages of their PTC
systems, and NS experienced an unplanned outage of its PTC system in
August 2023, impacting operations of both the host railroad and its
tenant railroads. Also, during 2023, several Class I railroads,
commuter railroads, and Amtrak temporarily disabled their PTC systems
to facilitate planned infrastructure upgrades or capital projects.
Finally, although railroads experiencing planned or unplanned outages
of their PTC systems comply with certain safety requirements,\138\ the
NPRM clarified that ``while PTC is a safety overlay to help prevent
certain accidents, FRA's PTC regulations do not include the
requirements to perform crewmember job functions, which are essential
to prevent or mitigate other accidents.'' \139\
---------------------------------------------------------------------------
\138\ See, e.g., 49 CFR 236.1021(m), 236.1029(b).
\139\ 87 FR 45581.
---------------------------------------------------------------------------
D. Tourist Railroad and Railroad Museum Industry Comment That Asserted
the NPRM Would Have No Impact
Heritage Rail Alliance, Inc., the primary trade organization for
the tourist railroad and railroad museum industry, commented that the
NPRM appears to impact minimally, if at all,
[[Page 25068]]
the operating practices of both non-general and general system tourist
railroads.\140\ The commenter's informal survey found that its member
railroads are using two-person train crews and that FRA was correct to
conclude that tourist railroads are unlikely to switch to one-person
train crew operations.
---------------------------------------------------------------------------
\140\ FRA-2021-0032-11017.
---------------------------------------------------------------------------
FRA's Response
In the NPRM, FRA stated that the agency is unaware of any tourist
train operation on the general railroad system of transportation that
operates with a one-person train crew.\141\ Heritage Rail Alliance,
Inc.'s comment verified that the final rule will have minimal to no
impact on non-general and general system tourist and museum train
operations. FRA notes, however, this final rule provides an exception
for tourist train operations that are not part of the general railroad
system of transportation, which is contained in Sec. 218.125.
---------------------------------------------------------------------------
\141\ A comment was received from the Strasburg Rail Road, which
has both tourist and short line freight operations, but that comment
is discussed under the heading ``Short Line and Regional Freight
Railroads'' as the comment described one-person train operations
concerning the railroad's freight operations or work trains, not its
tourist operations.
---------------------------------------------------------------------------
E. Comments Opposing the NPRM
The NPRM included a background discussion of the state of current
operations, including the existing Federal safety requirements and
projected impact of the proposed crew size safety requirements on
existing and future one-person train crew operations. The following
summary describes comments received from entities and individuals
including members of Congress, passenger train operators, short line
and regional freight railroad commenters, and Class I freight railroad
commenters. FRA did not identify any labor organizations, tourist
railroads, or State or local governmental commenters that opposed the
NPRM. In the summary of the comments from Class I freight railroads and
similar rail industry commenters, FRA responded to several additional
subjects that were addressed by these commenters. For instance,
comments were received regarding alternative crewmember arrangements
that the industry referred to as expeditors, ground-based crewmembers,
or ground-based conductors. The Class I freight railroads and similar
industry commenters also covered the subjects of train operations in
other countries, new technology and automated operations, the
transportation of hazardous materials, risk assessments and FRA's
review standard, and remote control operations. FRA's responses reflect
the agency's position on the comments and how FRA has responded in the
final rule as compared to the NPRM.
1. Congressional Commenters
The two Congressional comments opposing the rule detailed their
opposition and raised a variety of legal, policy, and safety concerns
that overlapped with other comments. For example, U.S. Senator Roger F.
Wicker, and Rep. Eric A. Crawford stated their concern that the
proposed requirements would have a significant economic impact on a
substantial number of small entities, a concern shared by short line
and regional freight railroad commenters.\142\ Senator Wicker commented
that ``[t]he NPRM fail[ed] to acknowledge that changes to operations
and infrastructure, may produce benefits, including safety benefits
[and that u]nder the logic in the NPRM, the specter of risk is
sufficient to prohibit preemptively any innovation.'' \143\ Further,
Senator Wicker commented that FRA has other ways to address safety
concerns raised in the NPRM such as raising the random testing drug or
alcohol testing rates, requiring inward facing cameras, or using other
technological advances.
---------------------------------------------------------------------------
\142\ FRA-2021-0032-13052 and FRA-2021-0032-13018.
\143\ FRA-2021-0032-13052 at 1.
---------------------------------------------------------------------------
Rep. Crawford expressed his view that FRA failed to comply with the
Administrative Procedure Act, because he sees the NPRM as lacking a
rational basis, and the Regulatory Flexibility Act, because he views
the NPRM as failing to determine whether the proposed rule would have a
significant economic impact on a substantial number of small entities.
Rep. Crawford commented that those legal concerns may be secondary to
his perception that FRA may be lacking the authority to promulgate a
rule based on case law limiting agency action under the ``major
questions doctrine.'' Rep. Crawford commented that the NPRM failed to
adequately identify a particular problem that needs to be addressed, in
addition to taking an overly prescriptive approach that does not
encourage innovation or growth or competition among regulated entities.
Rep. Crawford explained that he did not find FRA's support for the rule
persuasive and he suggested that FRA should have gotten more input from
the industry before publishing the NPRM.
FRA's Response
In comment responses below, FRA addresses in detail specific issues
raised by the Members of Congress, as many of these issues were also
raised by certain industry commenters. Other issues raised are
addressed in the RIA and below in Section IV.B, Regulatory Flexibility
Act and Executive Order 13272. The legal authority discussion in the
Executive Summary, above, describes FRA's authority to issue this rule.
Regarding additional industry input, FRA points to the extensive
history of engagement with industry on this matter, including the
following: (1) FRA pursued a collaborative approach on this subject
matter in 2013 and 2014, but was unable to obtain an industry
recommendation; \144\ (2) FRA extended the comment period to 146 days
upon request, which is significantly longer than the 60-day period
originally scheduled; and (3) FRA provided a public hearing, which was
widely attended and at which all commenters who wished to testify were
provided an opportunity to do so.
---------------------------------------------------------------------------
\144\ 81 FR 13918, 13935-39 (Mar. 15, 2016) (describing in an
NPRM for a previous rulemaking on this same subject FRA's efforts to
obtain a consensus recommendation from the Railroad Safety Advisory
Committee, a forum for collaborative rulemaking and program
development that included representatives from all the agency's
major stakeholder groups).
---------------------------------------------------------------------------
FRA disagrees with Senator Wicker's comment that the proposed rule
failed to recognize the benefits of innovation, as his comment was
directed to FRA's explanation for how the introduction of technology or
operational changes may introduce new risks. As clarification, the NPRM
explained that a risk assessment is useful as a formal process to
identify, evaluate, and eliminate or reduce any hazards identified to
within a range of acceptability.\145\ The risk assessment process
therefore provides the railroad with an objective way of qualitatively
or quantitatively showing how the technology or operational change is a
safety benefit.
---------------------------------------------------------------------------
\145\ 87 FR 45582.
---------------------------------------------------------------------------
2. Passenger Operations
The Utah Transit Authority (UTA), which operates the commuter rail
service called ``FrontRunner,'' commented that FRA should consider a
different, less stringent approach in the final rule for passenger
legacy operations especially because UTA's FrontRunner service was
established in 2008 and FRA last approved that operation's emergency
preparedness plan on February 25, 2022.\146\ UTA's comment reflected
that it would prefer
[[Page 25069]]
an option that did not require it to file for special approval, and
that it was concerned about the added expense and complexity of
complying with training a second crewmember should its current one-
person train crew operation be disapproved. UTA suggested that FRA
should consider expanding the current definition of ``train or yard
crew'' in Sec. 218.5 to include a second person like UTA's train host.
UTA's comment also included alternatives that would expedite the review
process for existing passenger operations or otherwise reduce costs.
---------------------------------------------------------------------------
\146\ FRA-2021-0032-10984.
---------------------------------------------------------------------------
The Denver Regional Transportation District (Denver RTD) filed a
comment describing its passenger operation and requesting FRA consider
the information in drafting a possible final rule.\147\ For instance,
Denver RTD requested that FRA consider whether an additional review
process as proposed is necessary, stating FRA's prior approvals and
requirements imposed on Denver RTD's operation were sufficient to
address any safety concerns. Denver RTD also questioned whether FRA was
correct to characterize the Denver RTD operation as a one-person train
crew legacy passenger operation in the NPRM as Denver RTD believes its
second qualified person already meets FRA's requirements for a train or
yard crewmember.
---------------------------------------------------------------------------
\147\ FRA-2021-0032-12177.
---------------------------------------------------------------------------
The American Public Transportation Association (APTA) filed a
comment that raised two issues of concern for its passenger rail
operation members.\148\ First, APTA raised concerns regarding the
proposed risk assessment requirements, which are addressed below in
this discussion of comments and conclusions under the risk assessment
heading. Second, APTA included a comment similar to UTA's concern about
the qualifications of a second train crewmember who could perform
duties under an emergency preparedness plan.
---------------------------------------------------------------------------
\148\ FRA-2021-0032-12947.
---------------------------------------------------------------------------
The Commuter Rail Coalition (CRC) also commented with some concerns
but did not assert whether the association or its members supported or
opposed the proposed rule.\149\ CRC commented that all major commuter
railroads operating today provide at least two qualified individuals
who are trained to support the safe operation of passenger trains, but
that the ``proposed rule would likely have a direct impact on at least
two commuter railroads that operate with at least two employees on each
train but would likely still require a special approval.'' \150\ Like
the other passenger operation commenters, CRC requested that FRA
consider amending the definition of train crew or adding an exemption
so that the rule accommodates as two-crewmember operations those
passenger operations that use a second person who does not perform
functions connected with the movement of the train. CRC's comment was
also similar to APTA's in its approach to the risk assessment, and
which FRA addresses below in this discussion of comments and
conclusions under the risk assessment heading. Further, CRC requested
that FRA consider providing railroads with additional time to comply
with any new requirements, suggesting that operations may need up to a
year to implement changes.
---------------------------------------------------------------------------
\149\ FRA-2021-0032-12172.
\150\ Id. at 3.
---------------------------------------------------------------------------
FRA's Response
In the NPRM, the background section discussed FRA's awareness of at
least two passenger train operations in which the railroads do not use
train crewmembers that meet the definition of ``train or yard crew'' in
Sec. 218.5, notably because the second person does not perform
functions connected with the movement of the train and thus is not
performing service subject to the Federal hours of service requirements
during a tour of duty.\151\ FRA stated that although such passenger
train operations may satisfy the requirements of 49 CFR part 239,\152\
railroads would need to seek FRA's special approval under proposed
Sec. 218.131 to continue such legacy train operation staffing
arrangements.\153\ As described above, FRA received comments from both
of the passenger train operations identified, Denver RTD and UTA's
FrontRunner. FRA agrees with those passenger train operators that such
legacy one-person train operations have been determined to meet the
safety requirements of FRA's passenger train emergency preparedness
rule and reopening those inquiries could be unduly disruptive to those
operations. Simply put, because the passenger train emergency
preparedness requirements overlap with many of the same issues that are
addressed by a special approval petition in this final rule, FRA does
not find it necessary to require a risk assessment and the opportunity
for public input in the approval process for these legacy passenger
train operations that already have approved emergency preparedness
plans. However, FRA is not willing to forgo the benefits of such
requirements for the initiation of passenger railroad train operations
staffed with a one-person train crew as required under Sec. 218.131.
Accordingly, the final rule, in Sec. 218.125(e), provides an exception
for each passenger one-person train operation established before the
effective date of this final rule with an approved passenger train
emergency preparedness plan under part 239. Further, his final rule
does not require these legacy operations to provide FRA with written
notification of the operation, as it has with legacy freight train
operations staffed with a one-person train crew in Sec. 218.129 of
this final rule, because the existing filing requirement for emergency
preparedness plan approval under part 239 of this chapter already
provides FRA with sufficient notice. As always, FRA also invites these
legacy operations to approach FRA with any specific questions
concerning their responsibilities under either part 239 or this final
rule.
---------------------------------------------------------------------------
\151\ 87 FR at 45580, n. 162 (identifying the following known
passenger train services operating with a one-person train crew: (1)
Denver RTD/Denver Transit Operators; and (2) UTA's FrontRunner).
\152\ 49 CFR 239.7 (defining ``crewmember,'' in part, to include
``a person, other than a passenger, who is assigned to perform . . .
[o]n-board functions in a sleeping car or coach assigned to
intercity service, other than food, beverage, or security service'',
and 49 CFR 239.101(a)(2), addressing employee training and
qualification of all ``on-board personnel,'' whether in intercity or
commuter passenger train service).
\153\ 87 FR at 45580.
---------------------------------------------------------------------------
However, FRA disagrees with the comments suggesting that FRA expand
the current definition of ``train or yard crew'' in Sec. 218.5 to
include a second person like those used in the legacy one-person
passenger train operations. In those passenger legacy operations, the
second person is not typically doing work under the hours of service
laws and is not involved with the train's movements. Thus, for purposes
of safe rail operations, FRA does not consider that type of rail
employee to be a member of the train crew and will not carve out what
would result in a prospective exception to the two-crewmember
requirement for existing passenger train operations in this final rule.
3. Short Line and Regional Freight Railroads
The American Short Line and Regional Railroad Association (ASLRRA),
on behalf of its short line and regional railroad members, provided
testimony at the public hearing and submitted a 143-page comment.\154\
ASLRRA commented that it represents approximately 600 Class II and III
railroads, which operate 47,500
[[Page 25070]]
miles of track or approximately 29 percent of the national freight
network, and employ approximately 18,000 people. ASLRRA raised a wide
range of issues including legal, policy, economic, and factual concerns
in opposition to the NPRM.
---------------------------------------------------------------------------
\154\ FRA-2021-0032-13033.
---------------------------------------------------------------------------
Like the comment filed by the U.S. Small Business Administration's
Office of Advocacy \155\ (SBA-Advocacy), described further in the Final
Regulatory Flexibility Analysis below, ASLRRA contends that the NPRM
underestimated the number of small railroads that would be impacted,
omitted costs for small railroads to comply, and miscalculated the
costs on small railroads to comply with the special approval process.
To support this position, ASLRRA surveyed its members and provided a
statistical extrapolation based on the results of the survey.\156\
ASLRRA commented that the number of its member railroads that currently
operate with some type of one-person train crew is approximately 420
railroads, a much greater number than the seven such short lines FRA
identified. ASLRRA was also concerned that the NPRM treated small
entities in the same way as Class I railroads when transporting certain
types of hazardous materials because the small railroad exception would
not apply under those circumstances.\157\ ASLRRA commented that the
NPRM ``also declines to provide regulatory relief or consider less
burdensome alternatives for small businesses'' \158\ that would benefit
from ``a performance standard.'' ASLRRA also requested that FRA
consider providing small railroads with more time to comply to allow
for proper planning, operational changes, and hiring and training of
additional crewmembers, if necessary. ASLRRA opposed the proposed
prohibition on transporting certain types or quantities of hazardous
materials with a one-person train crew. ASLRRA estimated that
approximately 114 short lines currently operate a train with a one-
person crew carrying quantities or types of hazardous materials that
would require a minimum two-person crew under the proposal, including
five railroads that had representatives testify at the public
hearing.\159\ ASLRRA commented that railroads, by statute, are under a
common carrier obligation to provide transportation of goods on
reasonable request and may not refuse to provide service merely because
it would be inconvenient or unprofitable.\160\ ASLRRA's comment
suggested that FRA previously determined that an alerter was
unnecessary for rail safety at speeds of 25 mph or less when the agency
promulgated a final rule on locomotive safety standards in 2012 without
distinguishing the risk between a two-person train crew and a one-
person crew.\161\ Further, ASLRRA commented that it costs approximately
$20,000 to equip a locomotive with an alerter, approximately 83
railroads currently operate with one person in the locomotive cab using
locomotives that are not equipped with an alerter, that it may not be
possible to retrofit some older models of locomotives, and to meet the
proposed requirements, these 83 railroads would need to equip at least
half of their locomotives.\162\
---------------------------------------------------------------------------
\155\ FRA-2021-0032-13007.
\156\ FRA-2021-0032-13033, att. D (providing a summary and
statistical analysis of the survey).
\157\ FRA-2021-0032-13033 at 41.
\158\ FRA-2021-0032-13033 at 10 and 13.
\159\ FRA-2021-0032-13033.
\160\ Id. citing 49 U.S.C. 11101(a) and offering the explanation
that ``[w]hile the obligation applies only to regulated traffic
(e.g., coal, grain, chemicals, etc.), the Surface Transportation
Board has historically stepped in to ensure that shippers are
reasonably served even for exempt commodities.''
\161\ FRA-2021-0032-1193 at 29-30 (citing 77 FR 21312).
\162\ FRA-2021-0032-1193 at 30-31.
---------------------------------------------------------------------------
Approximately 14 railroads or rail customers used a form letter in
which they identified their company as a member of the ASLRRA and asked
to incorporate the ASLRRA's comments as their comment. For example, the
form letter was used by the Virginia Railroad Association that
represents nine short line railroads, two Class I railroads, and 27
other rail-related business members.\163\ Also, these form letters
offer the same types of legal, economic, and policy comments that
ASLRRA made in greater detail in its comment.\164\ Each form letter was
personalized by adding one or two unique paragraphs describing the
submitter's existing one-person train crew operations, or plans to
introduce a one-person train crew operation, or to otherwise explain
why the commenter company opposed the NPRM. Ironhorse Resources, Inc.,
the parent company of at least eight railroads, commented that the NPRM
would significantly impact their existing operations because they use
an engineer on the locomotive and a conductor located in a
vehicle.\165\ Similarly, the Central Indiana & Western Railroad
commented that it is a small, family-owned railroad with two full-time
employees and two part-time employees and is concerned that the
requirements, as proposed in the NPRM, would remove the railroad's
option to utilize an engineer on the locomotive and a second crewmember
in a utility vehicle.\166\ The Sandersville Railroad also commented
that the requirements, as proposed in the NPRM, would remove the
railroad's option to utilize an engineer on the locomotive and a second
crewmember in a utility vehicle. Further, this railroad explained that
the small railroad operation exception, as proposed, would not be
manageable for its operation, although in coming to that conclusion it
misconstrued the proposed exception as only applying to railroads that
employ train dispatchers.\167\ The Ashtabula, Carson & Jefferson
Railroad did not comment why it could not meet the small railroad
operation exception as proposed but commented that it uses a one-person
crew on its six-mile-long track with transloading operations at each
end, operating at 10 miles per hour (mph), and a second crewmember to
flag two unprotected highway-rail grade crossings and help with
switching.\168\ MG Rail commented that it is a short line switching
railroad that uses remotely controlled locomotives (RCL) in its
operations with a one-person crew and is concerned about the rule's
potential impact on short lines generally but did not specifically
explain how the NPRM might potentially impact its operations (as the
NPRM did not propose requirements for trains during switching service
and included a proposed one-person train crew exception for remote
control operations).\169\
---------------------------------------------------------------------------
\163\ FRA-2021-0032-12381.
\164\ FRA-2021-0032-13033.
\165\ FRA-2021-0032-11719 (Caney Fork & Western Railroad); FRA-
2021-0032-11720 and duplicated in FRA-2021-0032-11722 (Sequatchie
Valley Switching Company); FRA-2021-0032-11721 (Walking Horse
Railroad); FRA-2021-0032-11723 (Rio Valley Switching Company;
Gardendale Railroad; Santa Teresa Southern Railroad; San Pedro
Valley Railroad; Southern Switching Company).
\166\ FRA-2021-0032-12301.
\167\ FRA-2021-0032-12394.
\168\ FRA-2021-0032-12970.
\169\ FRA-2021-0032-12261. The Finger Lakes Railroad (FGLK)
filed a similar comment in that it is a Class III short line that
has uses one-person remote control operations.
---------------------------------------------------------------------------
The Cimarron Valley Railroad (CVR) commented that it is a Class III
short line that operates with both two-person and one-person crews and
is concerned that the NPRM's small railroad exceptions would not apply
to its one-person operation because the total length of its unit trains
handled in interchange are greater than FRA's proposed limitation of
6,000 feet for the proposed small railroad operation exception.\170\
CVR did not state how long these trains were nor explain why it could
not file a special approval
[[Page 25071]]
petition for a legacy operation as proposed. Like other short line
commenters, CVR did not request that FRA amend the exceptions or
special approval process in the NPRM but instead requested that FRA
withdraw the NPRM in its entirety or, alternatively, categorically
exclude all Class II and III operations because, in its view, short
lines already successfully operate today in this environment.
---------------------------------------------------------------------------
\170\ FRA-2021-0032-12683.
---------------------------------------------------------------------------
The Farmrail System, which owns two Class III short lines, Farmrail
Corporation and Grainbelt Corporation, commented that it has used one-
person crews by utilizing a truck-based employee to accompany freight
trains between switching assignments and with remote control
operations.\171\ This commenter found the NPRM's proposed requirements
complicated and did not believe the exemptions and special approval
process provided adequate relief for short lines.
---------------------------------------------------------------------------
\171\ FRA-2021-0032-13042.
---------------------------------------------------------------------------
Patriot Rail commented that it is a holding company that owns 31
short lines with operations that use one crewmember in the locomotive
and one crewmember in a motor vehicle providing safety, logistical, and
customer support.\172\ Overall, Patriot Rail opposes the rule for many
of the same reasons articulated in ASLRRA's comment. Patriot Rail
stated that it supports FRA's recognition that short line operations
can be accomplished safely with a minimum of two crewmembers, but with
only one person in the locomotive cab. Patriot Rail commented that some
of the NPRM's requirements allowing for exceptions seemed arbitrary,
such as limitations on train length and commodities, and for other
proposed requirements for alerters, dispatching, and electronic
communications devices. Additionally, Patriot Rail recognized the
proposed special approval process as an option if an exception to the
NPRM could not be met, but this short line holding company viewed the
process as burdensome without clearly enumerated safety benefits.
---------------------------------------------------------------------------
\172\ FRA-2021-0032-13019.
---------------------------------------------------------------------------
The Strasburg Rail Road commented that it has tourist and short
line freight operations that frequently permit its two crewmembers to
leave the locomotive cab after securing the train, such as when a one-
person crewmember joins a roadway work group on the ground after
securing the train.\173\ This railroad commented that it was concerned
that the rule would prohibit that activity because FRA proposed that
the one-person train crewmember must remain in the locomotive cab
during normal operations. The Strasburg Rail Road also commented that
it does not have locomotives equipped with alerters for its one-person
work train operations.
---------------------------------------------------------------------------
\173\ FRA-2021-0032-12550 (and a duplicate was filed at FRA-
2021-0032-12670).
---------------------------------------------------------------------------
Other such railroad commenters provided testimony at FRA's public
hearing. For example, the Director of Safety, Training, and Regulatory
Compliance for the Rio Grande Pacific Corporation (RGPC) testified that
its four Class III short lines operate with an engineer in the
locomotive and a certified conductor in a utility vehicle who maintains
contact with the engineer by radio and is assigned as a train
crewmember.\174\ RGPC explained that this crew staffing arrangement is
efficient for interaction with customers, preparing for the train's
arrival at a customer's location, and protecting highway-rail grade
crossings. RGPC is concerned that certain of the NPRM's proposed
requirements would mean that RGPC's short lines would need to hire a
third crewmember because their operations would be unable to qualify
for the small railroad exception. For example, RGPC testified that its
short lines operate trains longer than 6,000 feet, haul 20 or more
loaded cars of hazardous materials, and do not have the means to
conduct real-time monitoring of the train's location. RGPC also
testified how it would be logistically difficult to move the certified
conductor in the utility vehicle to the locomotive, and that it
believed the proposed rule would lead RGPC's short lines to hire a
third crewmember.
---------------------------------------------------------------------------
\174\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The Vice President of Human Resources and Safety at Florida East
Coast Railway (FEC) testified that the railroad is currently using one-
person operations for short distance intermodal trains, but the NPRM
would prohibit some trains because of the proposed hazardous materials
prohibition.\175\ FEC stated that it has an extensive list of deployed
safety technology, and it has main track equipped for up to 60-mph
trains.
---------------------------------------------------------------------------
\175\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The General Manager of the Madison Railroad and incoming Vice Chair
for the Railroads of Indiana group testified that the Madison Railroad
is a short line with five full-time staff and has been operating a one-
person train crew since 1978 on its 41 miles of track at 10 mph in
southern Indiana. Five employees are responsible for train operations
and track and signal inspection and maintenance on the Madison
Railroad.\176\ The testimony added to the Madison Railroad's written
comment, which used the ASLRRA's form letter.\177\ The Madison Railroad
testified that it operates about a mile and a half on steep 5.89
percent grade near the Ohio River, which is mitigated by specific
operating rules, brake system and locomotive equipment requirements,
and additional training. According to the Madison Railroad, it has
provided additional risk mitigation steps above FRA's minimum
requirements. For instance, the Madison Railroad testified that it only
operates one train at a time and the maximum train speed is limited to
10 mph with restricted speed in effect. The Madison Railroad is
concerned that the NPRM would lead to an overall net decrease in safety
as any increased costs to hire a minimum of two additional employees
would mean that the railroad would need to divert resources from
investing in physical infrastructure and equipment.
---------------------------------------------------------------------------
\176\ FRA-2021-0032-13184 (hearing transcript). The Railroads of
Indiana filed a separate comment opposing the NPRM's lack of
regulatory certainty about the likelihood of a special approval
petition being approved and raising concerns about costs on small
railroads. FRA-2021-0032-10228.
\177\ FRA-2021-0032-12221.
---------------------------------------------------------------------------
The Senior Vice President and General Manager of the Grafton and
Upton Railroad (G&U) testified as to his diverse experiences in
railroad operations as a conductor, a locomotive engineer, and a
designated supervisor of locomotive engineers, and how he has operating
experience on Amtrak's Northeast Corridor, CSX Transportation's
mainline, and many short lines.\178\ Based on this experience, G&U
testified that one-person crews have, both currently and historically,
operated safely, and how doing so is a more efficient use of a short
line's limited resources. G&U stated it has a 25-mile-long system and
transports many hazardous materials, including propane, typically with
a one-person crew that is certified as both a conductor and a
locomotive engineer and a second conductor crewmember in a motor
vehicle. G&U testified that, in addition to the proposed prohibition on
trains with hazardous materials, it would not meet the short line
exception in the NPRM because it operates over heavy grade. G&U also
noted its locomotives are not currently required to have alerters.
Overall, G&U expressed concern that the NPRM would create significant
capital and operational costs.
---------------------------------------------------------------------------
\178\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
The Vice President of Operations at Transtar, LLC, testified that
Transtar is a holding company operating five Class
[[Page 25072]]
III short lines and one contract switching carrier.\179\ Transtar
highlighted one of its short lines, the Texas and Northern Railway
(T&N), which it described as seven miles of main track serving small
customers with a one-person train crew and a conductor in a motor
vehicle. Transtar testified that the T&N would not qualify for the
NPRM's exceptions because it does not maintain the train's real-time
progress or have a method of determining the proximate location if
communication is lost with a one-person crew. Also, the T&N does not
utilize a dispatcher, its locomotives are not equipped with alerters,
and its track has heavy grade. Transtar also expressed concern that the
proposed rule would force T&N, which it described as a ``low margin
railroad,'' to increase costs and the railroad's ``customers would in
turn either pass the increased costs onto their customers . . . or
choose to ship [their] commodities via truck which is considerably less
safe, and less environmentally friendly than shipping via rail.''
---------------------------------------------------------------------------
\179\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
FRA's Response
In this final rule, FRA has carefully considered the track record
of safety in these operations with the need to establish minimum
requirements to address fundamental issues of rail safety regarding the
operation of one-person train crews and the short line rail industry's
claim that the proposed requirements in the NPRM would have introduced
significant costs on approximately 63 percent of the industry through
proposed requirements for special approvals, risk assessments, the
installation of alerters, or the adoption of and compliance with new
operating rules.\180\ After reviewing these comments, including the
testimony at the public hearing that included approximately five Class
II and III freight railroad representatives and the ASLRRA's expert on
how their survey was conducted,\181\ FRA made the following general
determinations: (1) although ASLRRA made a good faith effort to collect
data from its short line and regional railroad members, the information
submitted is insufficient to allow an independent validation of the
survey results and differences between ASLRRA's and FRA's estimates may
have resulted from a misunderstanding of the proposed rule's
terminology; (2) in turn, while ASLRRA extrapolated data in good faith
from the data collected from the responding short line and regional
railroads, because of the potential terminology misunderstanding and
the potential for bias in the way ASLRRA surveyed its member railroads,
FRA cannot rely on ASLRRA's data extrapolations for purposes of the
RIA's primary analysis; (3) FRA can address the short line and regional
railroad industry's requests to treat Class II and III freight
railroads differently from the Class I freight railroads, a departure
from the NPRM, by eliminating the special approval process for some
one-person train crew operations when certain safety requirements and
notification requirements are met, and thereby provide greater
regulatory certainty; (4) FRA can address the short line and regional
railroad industry's concerns regarding the proposed prohibition on one-
person operations carrying certain quantities or types of hazardous
materials; (5) FRA can address the short line and regional railroad
industry's requests to provide railroads with more time to comply with
any new minimum requirements to allow for proper planning, operational
changes, or hiring and training of additional crewmembers, another
revision to the NPRM; and (6) despite FRA's concerns as to the accuracy
of ASLRRA's survey results and data extrapolations, the RIA does show
that, even when using ASLRRA's numbers, the cost of the final rule will
not be substantially higher because of changes made in the final rule
from the NPRM and, therefore, FRA would still proceed with this rule
whether or not ASLRRA's survey and extrapolation numbers were
validated. FRA agrees with ASLRRA's comment that it may not be possible
to retrofit some older models of locomotives, although ASLRRA did not
describe this concern as an issue preventing existing operations from
continuing but instead commented that approximately half the locomotive
fleet for those existing operations would need to be retrofitted with
an alerter. Consequently, the final rule addresses safety concerns with
various one-person train crew operations that were raised in the NPRM,
while providing flexibility for certain one-person crew operations by
short lines. The following paragraphs describe FRA's response in more
detail.
---------------------------------------------------------------------------
\180\ ASLRRA's comment estimated that 63% of the short line
railroad population `run some kind of 1-person operation.' FRA-2021-
0032-13033.
\181\ FRA-2021-0032-13184 (hearing transcript).
---------------------------------------------------------------------------
ASLRRA's survey suggested that because 176 short lines responded
that they deployed a one-person train crew operation, ASLRRA could use
statistical analysis to extrapolate and find that approximately 420
short lines industry-wide were deploying such an operation. However, as
noted above, FRA did not use ASLRRA's extrapolated numbers in its
primary RIA estimate because of the potential misunderstanding of the
proposed rule's terminology and the survey's analysis did not
adequately address the potential for non-response bias.\182\
Specifically, although it cannot be determined from the survey data
submitted, it seems plausible that short lines that perceived
themselves as not having any type of one-person train crew operation or
need for an exception, or otherwise not impacted by the proposed
requirements in the NPRM, might have chosen not to respond to ASLRRA's
survey.\183\ Thus, while FRA's
[[Page 25073]]
primary analysis in the RIA uses FRA's estimates, FRA added a
sensitivity analysis in the RIA to demonstrate the cost of the final
rule using ASLRRA's survey numbers. The costs based on ASLRRA's numbers
would not dissuade FRA from finalizing this crew size safety
requirements rule.
---------------------------------------------------------------------------
\182\ The ASLRRA's survey was not based on a random sample of
short line railroads and did not examine why approximately 60
percent of ASLRRA's short line members did not respond. The survey
used three statistical concepts to address the missing data problem;
however, each analysis was problematic:
(1) ASLRRA's Missing Completely at Random (MCAR) analysis
asserted that a representative random sample (of the population) was
available from the survey response. However, the entire population
was surveyed and for unknown reasons some railroads did not respond.
This would preclude MCAR analysis for the purpose of extrapolation.
(2) A proper Missing (Conditionally) at Random (MAR) analysis
requires that the railroads selected for the survey be grouped by
known factors, such as commodity, and that it can be shown that a
specific commodity grouping would have no reason to respond to the
survey. ASLRRA's MAR analysis claimed that several variables could
be used to achieve this grouping such as revenue, geography, and
miles, but the means to identify the relationship of these groupings
and survey response were not provided or cited. For example, the
geographic regions selected were defined as four abstract areas
lacking specific boundaries. In the analysis, miles were described
as a factor and it was unclear if ``train miles'' (publicly
available data on FRA's Safety Data website) were used as ``route
miles,'' conflating how the factor could be applied. Proprietary
revenue data was used in the analysis which prevented FRA from being
able to independently validate the relationship between operations
and revenue. Under 49 CFR 209.11, ASLRRA could have established a
means to provide FRA the data for analysis, but it did not do so.
(3) A Missing Not at Random (MNAR) analysis is the most complex
analysis of the three and asserts that the reasoning for the missing
data is unknown and thus more data is required to analyze. In an
MNAR analysis, groupings may show a definitive relationship with
response versus non-response; however, in this survey, there is no
definitive evidence showing the reason for the non-response. To use
an MNAR analysis, ASLRRA should have required more data showing a
definitive relationship with non-response (e.g., by conducting a
follow-up survey specifically targeted to the non-responding
railroads).
\183\ This possible explanation is most relevant to the
discussion regarding MNAR analysis in the previous footnote, and
this explanation is also plausible based on FRA's understanding of
rail operations nationwide. Also, ASLRRA's survey expert testified
at the public hearing that the association conducted its survey
before the expert was brought onboard and how the problem is ``you
worry that the non-responders are in some way different
systematically from the responders [and that m]aybe it's just a case
that . . . those short lines that are affected are most likely to
respond.'' FRA-2021-0032-13184 at 36.
---------------------------------------------------------------------------
Because the estimate of the potentially impacted entities resulting
from ASLRRA's survey and comment so greatly differed from FRA's
estimate of potentially impacted railroads, FRA sought to understand
the reason for this discrepancy, rather than to minimize ASLRRA's
survey results, even though those results could not be independently
validated. For example, in response to ASLRRA's survey of its 696 short
line members, 176 of the 280 short lines that responded reported that
they deployed a one-person train crew operation--which stands in sharp
contrast to the seven freight railroads FRA identified by name in the
NPRM as known to operate a one-person train crew operation.\184\
Meanwhile, comments filed in response to the NPRM by holding companies
owning multiple short lines and individual short line commenters
revealed that, of approximately 62 short lines that self-identified as
having a one-person train crew operation: (1) 54 short lines stated
that they used a second train crewmember in a motor vehicle that
intermittently assists the train--which FRA identified as a small
railroad operation exception in proposed Sec. 218.129(c)(1)(ii); (2)
two short lines stated that their one-person train crew operation was a
remote control operation--which FRA identified as a small railroad
operation exception in proposed Sec. 218.129(c)(3); (3) one short line
identified that it used a work train with a one-person train crew--
which FRA identified as a specific freight train exception in proposed
Sec. 218.129(c)(2); and (4) five short lines did not identify the type
of one-person train crew operations they used or exactly how they would
be impacted by the NPRM's proposed requirements. In reviewing the short
line and regional railroads' comments, it appears that these commenters
were counting all one-person train crew operations, even if the special
approval process did not apply, because some of the one-person train
crew operations FRA proposed for exception could not be used without
also complying with additional requirements. Thus, FRA determined that
the NPRM's lack of a definition for a ``one-person train crew'' was
creating confusion.
---------------------------------------------------------------------------
\184\ 87 FR 45578-79, FN 155.
---------------------------------------------------------------------------
To ensure that FRA and the rail industry use the same terminology
for the purposes of addressing one-person train crew requirements, the
final rule includes definitions for the terms ``one-person train crew''
and ``one-person train crewmember.'' By defining these terms, the final
rule clarifies that a one-person train crew includes: (1) a train
operation with a single assigned railroad employee performing both the
locomotive engineer's and conductor's duties; or (2) when a single
assigned railroad employee is traveling on the train when the train is
moving, and the remainder of the train crew, including the conductor if
the locomotive engineer is not the assigned conductor, is assigned to
intermittently assist the train's movements. The latter operation will
therefore include what many short line commenters described as a one-
person operation when they used a second assigned train crewmember that
intermittently assists the train but primarily travels in a motor
vehicle instead of traveling on the train when the train is
moving.\185\
---------------------------------------------------------------------------
\185\ As is later explained in greater detail in this discussion
of comments and conclusions, FRA's current rail safety requirements
distinguish between a train crewmember that is assigned a single
train and a person that performs work as a utility employee or other
worker that may perform work for multiple trains. FRA found ASLRRA's
survey questions drafted imprecisely with regard to this issue. For
instance, in ASLRRA's survey, see FRA-2021-0032-13033, attachment A,
question 4 asks a railroad to check a box if it uses on its main
line operations ``one person in the locomotive cab, supported by a
conductor who is supporting multiple trains simultaneously,'' when
FRA requires a conductor to be in charge of the crew and therefore a
conductor cannot be in charge of more than one train simultaneously.
See 49 CFR 242.7 (defining ``conductor'').
---------------------------------------------------------------------------
In the NPRM, FRA described the agency's understanding that fewer
freight short line and regional railroads are using one-person train
crew staffing arrangements than in 2016, as FRA identified fourteen
Class II and III railroads operating single-person train operations in
2016 and only seven of those same freight railroads maintaining such
operations in 2022.\186\ FRA requested comments on any additional such
railroads conducting one-person train crew operations and the interest
of such railroads to conduct one-person train crew operations in the
future.\187\
---------------------------------------------------------------------------
\186\ 87 FR 45578.
\187\ 87 FR 45579.
---------------------------------------------------------------------------
Based on the comments and the added definitions concerning one-
person train crews, FRA has revised its estimate of the number of
existing railroad operations impacted by each requirement in the RIA to
this final rule. FRA estimates that there are 75 Class II and III
railroad legacy freight one-person train crew operations, excluding
those one-person train crew operations that would fall into one of the
other exceptions covered in the final rule by Sec. 218.125 through
Sec. 218.129. This estimate was based on the 62 commenters that
described an existing one-person operation, even counting the eight
commenters that did not describe an operation that definitively would
fit into the one-person train crew operation as FRA is defining such an
operation for this final rule. Further, this estimate includes the
seven one-person train crew operations identified in the NPRM and the
proposed rule's RIA. FRA's estimate includes at least 10-20 percent
more one-person train crew operations than known through FRA
identification and commenters' self-descriptions. Although some
commenters were ambiguous in describing their operations, FRA included
those operations in this conservative estimate that may overestimate
the actual number of established one-person train crew operations.\188\
---------------------------------------------------------------------------
\188\ In response to ASLRRA's survey of its 696 short line
members, 176 of the 280 short lines that responded claimed that they
deployed a one-person train crew operation.
---------------------------------------------------------------------------
This final rule also addresses the short line rail industry's
request that the final rule distinguish Class II and III freight
railroad operations from those of the Class I freight railroads by
utilizing the alternative regulatory approaches discussed in the NPRM's
RIA.\189\ Thus, rather than requiring a special approval petition for
each proposed one-person train crew operation, the final rule allows
certain one-person train crew operations to continue or be initiated
without a special approval process. Instead of the proposed FRA review
and approval requirements associated with a special approval petition
for all legacy train operations staffed with a one-person train crew in
proposed Sec. 218.131 and for the initiation of all other train
operations staffed with a one-person train crew in proposed Sec.
218.133, the final rule, in Sec. 218.129, requires written
notification (in addition to certain operational requirements) only
from railroads with established legacy one-person train crew freight
operations as well as Class II and III freight railroads seeking to
initiate a train operation staffed with a one-person train crew but not
transporting hazardous materials of the types or quantities specified
in Sec. 218.123(c). This written notice replaces the approval process
for these operations and provides greater
[[Page 25074]]
regulatory certainty while providing more flexibility to short lines as
compared to the NPRM's proposed requirement of a petition filing and
special approval process. The notification requirements in the final
rule will still provide FRA with significant information regarding the
locations and extent of, and hazards posed by, these one-person train
crew operations.
---------------------------------------------------------------------------
\189\ FRA-2021-0032-0368.
---------------------------------------------------------------------------
FRA's decision to permit Class II and III legacy one-person train
crew freight operations, including those transporting hazardous
materials, to continue without a risk assessment or special approval
was based on the final rule's imposition of minimum requirements on
these legacy operations. For instance, the implementation schedule
phasing in operating rules to protect the one-person train crewmember
and to safeguard the public after an incident should ensure that
railroads are prepared to take the appropriate mitigation measures to
protect employees and the public. Similarly, the final rule's
requirement for an alerter on any controlling locomotive operated by a
one-person train crew and an operating rule that requires testing the
alerter to confirm it is functioning before departure will provide an
alternative that makes that aspect of the operation as safe or safer
than a two-person minimum train crew operation where a second
crewmember would be expected to make an emergency brake application if
the locomotive engineer became incapacitated. Although not required in
this final rule, FRA encourages railroads with legacy operations to
examine any safety hazards that could be further mitigated to reduce
risks with one-person train crew operations or any of their operations
generally, such as track maintenance near waterways and densely
populated areas or the railroad's operating rule requirements for a
second crewmember who assists intermittently to ensure that this
crewmember is contributing to the safety of the train's movement to the
greatest extent possible. FRA will closely monitor this legacy
exception and will scrutinize data or observations showing that the
legacy operations may not be as safe as currently described.
FRA also removed the NPRM's proposed prohibition on one-person
train crew operations transporting certain types or quantities of
hazardous materials with respect to initiating new or existing, but
non-legacy, operations. All railroads, including Class II and III
railroads, seeking to initiate such an operation transporting hazardous
materials of the types or quantities specified in Sec. 218.123(c) will
be required to conduct a risk assessment and obtain special approval
for the operation under Sec. 218.131. The revisions from the proposed
rule's approach regarding the transportation of hazardous materials
reflects FRA's consideration of ASLRRA's comment that the common
carrier legal obligation prohibits a railroad from refusing service to
a customer that provides a properly packaged hazardous material. The
RIA acknowledges the potential costs of compliance with the final
rule's requirements for a one-person train crew. Considering the known
safety and security risks associated with operating trains transporting
large amounts of hazardous materials, previously determined by FRA, the
Transportation Security Administration (TSA), and the Pipeline and
Hazardous Materials Safety Administration (PHMSA) to present the
greatest safety and security risks, FRA finds that the final rule's
requirements are justified to ensure the safety of trains. FRA is
willing to work with the short line industry in developing a model risk
assessment that could potentially reduce the paperwork burden on short
lines and accelerate the petition process. FRA also supports ASLRRA and
its members creating a template or model risk assessment to reduce the
burden on individual Class II and III railroads. FRA has considered
this in estimates used in the final rule's RIA.
The final rule also addresses the short line industry's comments
that the proposed exceptions in the NPRM were too stringent in that
they included limitations on speed, grade, or train length, by largely
eliminating those proposed limitations within the exceptions and
providing other criteria to govern those operations. For instance, in
proposed Sec. 218.129(c)(1), the exceptions identified specifically
for ``small railroad operations'' were limited to a freight train
operated on a railroad that would not exceed 25 mph and by an employee
of a railroad with fewer than 400,000 total employee work hours
annually. In the final rule, FRA did not include the proposed speed
restriction for such a small railroad operation, thereby allowing the
train to be operated at the maximum allowable track speed and not
creating a disincentive to maintaining track to the highest standard a
railroad chooses to sustain. The small railroad operations exception
was also expanded in the final rule to include all Class II and III
freight railroads.\190\ In addition, the proposed track grade and train
length limitations for the small railroad operations exception have not
been adopted in the final rule. Moreover, in response to short line
comments and after reviewing existing safety regulations, FRA has
decided not to apply this final rule to a train operation controlled by
a remote control operator because it has existing safety requirements
for these operations and because there are other reasons mentioned
later in this discussion of comments and conclusions.
---------------------------------------------------------------------------
\190\ There are nine holding companies that own approximately
250 Class II and Class III railroads. Those holding companies are:
Anacostia Rail Holdings, Genessee and Wyoming, Iowa Pacific
Holdings, OmniTRAX, Pioneer Railcorp, Progressive Rail Inc., R.J.
Corman Railroad Group, Patriot Rail, and Watco.
---------------------------------------------------------------------------
Similarly, the final rule responds to certain short line
commenters' concerns over a proposed requirement that certain one-
person freight train operation exceptions in proposed Sec. 218.129(c)
must have an operating rule or practice requiring that the crewmember
remain in the locomotive cab during normal operations and leave the
locomotive cab only in case of an emergency affecting railroad
operations.\191\ The proposed requirement applied to the exceptions
identified as small railroad operations, work train operations, and
remote control operations. The Strasburg Rail Road explained that this
proposed requirement would have precluded its current work train
arrangement whereby the one-person crewmember is permitted to join a
work group on the ground after securing the movement. Upon further
consideration, the requirement FRA proposed in the NPRM has not been
included in the final rule, as FRA finds its current securement
requirements are sufficient to safeguard unattended trains.\192\
---------------------------------------------------------------------------
\191\ 87 FR 45617 (citing proposed paragraph (b)(1) of Sec.
218.129).
\192\ 49 CFR 232.103(n).
---------------------------------------------------------------------------
Additionally, in Sec. 218.129 of the final rule, FRA has addressed
the comments requesting that each railroad be provided more time to
comply with any new requirements or, as necessary, hire or train a
second crewmember for a one-person train crew operation by providing an
implementation schedule that phases in the final rule's requirements
for certain specified one-person train crew operations. That phased-in
implementation schedule will apply to: (1) each Class II or III
railroad with a legacy one-person freight train operation; (2) each
railroad seeking to continue or initiate use of a work train operation
staffed with a one-person train crew; (3) each railroad seeking to
continue or initiate use of a helper service train operation staffed
with a
[[Page 25075]]
one-person train crew; and (4) each railroad seeking to continue or
initiate use of a lite locomotive train operation staffed with a one-
person train crew, excluding a multiple unit (MU) locomotive passenger
operation where the car carrying the passengers is also functioning as
the locomotive.
The implementation schedule provides enough time for railroads to
comply with the final rule's new requirements, and FRA encourages each
railroad with a one-person train crew operation to act more quickly
than required by the schedule when possible. For instance, FRA expects
that each railroad should be able to adopt any necessary operating
rules within a short period of time, potentially within a few weeks at
most, even though the final rule's implementation schedule for excepted
operations will provide up to 90 days from the effective date of the
final rule. It is possible that ASLRRA or other groups will draft model
operating rules that address the operating rule requirements in the
final rule, and these model operating rules could be adopted
secondarily to replace any quickly adopted rules that are used in the
short term. Meanwhile, it can be expected that some railroads will
quickly install any required alerters while others delay installation
for various reasons; FRA urges each railroad not to delay alerter
installation.\193\
---------------------------------------------------------------------------
\193\ Not only does FRA require most locomotives to have a
working alerter installed, FRA's current rail safety regulation in
the same part as this final rule contains a strict prohibition
against tampering with such devices that are installed to improve
the safety of the operation of train movements. 49 CFR part 218,
subpart D.
---------------------------------------------------------------------------
For these reasons, the final rule largely provides the clarity and
streamlined approach that ASLRRA and Class II and III freight railroads
requested while establishing minimum requirements for the safety of
one-person train crew operations. At the same time, the final rule
increases safety for operations proposed as one-person train crews
because an alerter or a second crewmember to stop the train in an
emergency is a necessary precaution to prevent the potential for
catastrophic harm due to an uncontrolled train movement; in reaching
this conclusion, FRA reviewed its statements from 2012 in a locomotive
safety standards rulemaking cited by ASLRRA and determined that the
agency is not issuing conflicting statements.\194\ The final rule's
requirements regarding alerters in the controlling locomotive,
safeguards to protect the one-person train crewmember, and procedures
for minimizing the impact of situations that could endanger employees,
the public, or environment reduce the risk of foreseeable hazards
associated with one-person train crew operations.
---------------------------------------------------------------------------
\194\ ASLRRA's comment, FRA-2021-0032-1193 at 29-30, citing 77
FR 21312, did not explain that: (1) FRA's statements regarding the
need to establish a minimum alerter requirement were based on
multiple NTSB recommendations to do so; (2) that NTSB's
recommendations were based on accidents that occurred at varying
speeds; or (3) that NTSB's accident analysis was focused on the
``crewmembers'' without considering the possibility that railroads
would be operating one-person trains. 77 FR 21320-21. Similarly,
FRA's rationale for permitting operational flexibility by tailoring
the alerter standard to a minimum operational speed did not address
the possibility that railroads would be operating one-person trains.
77 FR 21329-30. NTSB's rationale for an alerter standard included an
analysis of a head-on train collision on July 10, 2005, in which
``the NTSB determined that an alerter likely would have detected the
lack of activity by the engineer and sounded an alarm that could
have alerted one or both crewmembers [and h]ad the crew been
incapacitated or not responded to the alarm, the alerter would have
automatically applied the brakes and brought the train to a stop . .
. [potentially] prevent[ing] the collision.'' 77 FR 21320-21. In
FRA's view, because the agency understood the operational status quo
at that time was a minimum of two train crewmembers, its decision in
2012 to provide some operational flexibility to ``freight railroads
[that] only operate over small territories'' and move at lower
speeds included the unwritten expectation that a second crewmember
would be available to apply the emergency brake if the locomotive
engineer was fatigued or incapacitated. 77 FR 21329-30.
---------------------------------------------------------------------------
4. Class I Freight Railroads
FRA received numerous comments opposing the NPRM from the Class I
freight railroads and groups associated with those railroads. The
following is a summary of, and response to, those comments.
a. Alternative Crewmember Arrangements Including Expeditors, Ground-
Based Crewmembers, or Ground-Based Conductors
Numerous commenters offered that the NPRM would be disruptive to
their current operations or plans to use one-person train crews in
combination with other rail employees that, as described, might not be
a part of a train crew as FRA defines that term in its current
regulation,\195\ or would not meet FRA's proposed requirements under
the NPRM. In general, these commenters described train operations using
a rail worker, traveling in a motor vehi
[…truncated; see source link]Indexed from Federal Register on April 9, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.